(#12) BE-Memo :: Justice 4 EI Misconduct

Vavilov ¶95: Use of Internal & Undisclosed Information

Internal ‘BE-Memo’ (Justice 4 EI Misconduct)

 

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Legal Principles: Problem #5 (Use of Internal & Undisclosed Rules)

Fundamental Questions (1): #10

Grounds of Review (1): FCA §18.1(4)(b)

Vavilov Principles (4): Process & Outcome

• Fairness Principle & Meaningful Reasons

• (d) Evidence Before the Decision Maker

• (e) Submissions of the Parties

• (f) Past Practices & Past Decisions

 

Transparency is a fundamental tenant of Reasonableness. It is both Unfair & explicitly:

“Unacceptable for ADMs to […] expect that its Decision would be upheld on the basis of internal records that were not available to that party.” (Vavilov [¶95])

 

Facts & Issues

Internal Rules: Can EI ADMs rely on Confidential Internal Rules? Are they subject to Disclosure or Discoverability? Can this be Overruled? Is this Vavilov-Compliant?

Important Clarification: I am not relying on Lex Acker’s blog post – nor am I submitting any arguments related to his ‘conspiracy’ concerns or other potential claims of mal-intent. This is strictly about the Fairness of allowing “internal records that [a]re not available to that party” – binding policies that are only discoverable & obtainable through a complex, time-consuming legal process that requires multiple ATIPs – to determine the outcome of EI Benefits Claims. 

(NB: I want to be explicitly clear: When discussing the ‘BE-Memo’, I am not claiming personal discrimination, collusion, or any other problems with any specific person involved in my Case. This is about the Fairness of the process itself. ATIPs, which provide a legal ‘chain-of-custody’, clearly prove that SC/EI & CEIC Agents are bound by an internal policy – one that targets a specific class of [C19-MM] Claimants – and redefines settled definitions & changes long-established adjudication processes when deciding their specific Claims.)

 

On 2021-10-29, the CEIC’s ‘Business Expertise’ Team (‘BEA’) – under the authority of the ‘EI Operational Policy Service Desk’ (‘OPSD’) – published an internal ‘memo’ (‘BE-2021-10’) to the ‘Policies’ portal of the ‘EI Online Reference Tool’ (ORT). Its full title was the: “EI Eligibility & Refusal to Comply with Mandatory Vaccination Policy” (or ‘BE Memo’). This internal ‘policy’ purported to provide “guidance [to] all staff involved in the processing of claims” (p.10) for a specific subset of Claimants – only those who “refus[ed] to comply with a mandatory vaccination policy.” (p.10)

This internal policy provided new Definitions (i.e. ‘Just Cause’ & ‘exceptional circumstances’ [p.3], ‘suspended’ [p.4-5] & ‘availability’ [p.6-7], etc.) and different Processes & Procedures (‘Fact-Finding’ [p.9-10] & determining the validity of Medical & Religious Exemptions [p.7-9]) that only applied to this specific subset of EI Claimants.

Despite being a binding ‘policy’, the BE Memo opened with a legal disclaimer: that “Th[is] memorandum is not linked to any legislative or regulatory amendments.” (What possible purpose – other than for future indemnification – could this notice serve‽)

Since this ‘memo’ self-admittedly contained no legal foundation, on what basis could it be published as an official ‘policy’? By what authority? These Definitions & Processes are already defined by statute, regulation & precedence (in that order). This fact alone should legally invalidate the BE Memo – and every Decision based upon it.

This raises several crucial questions that should be answered before relying on it:

1. Who specifically authored this BE Memo?

2. Who specifically authorised its enforcement?

3. Why was it an unpublished internal memo?

4. Why only apply to specific Claimants, not all?

 

Authorities

Here are some unreasonable changes to established Definitions & Processes:

1. Voluntary Leaving (BE Memo: p.3-4)

   “In the context of a mandatory vaccination policy, an employee would not have Just Cause to voluntarily leave their employment unless they left due to exceptional circumstances.”

   What is the legal basis for this policy change? Just Cause is already defined in statute. There is no ‘exceptional circumstances’ enhancement that only applies to selective Claimants. This is beyond patently unreasonable…

   (Alternatively: Is a global pandemic not ‘exceptional circumstances’? Or mandating experimental medical treatments upon 8B people? Or withholding livelihoods? My AD TM conceded “the exceptional circumstances created by the pandemic.”) ¹

   “Some clients could argue that a new Mandatory Vaccination Policy is a major change in the Terms or Conditions of Employment and their Duties. The Just Cause exception is usually used in the context of changes that have a direct impact on the work and therefore the employee had no other choice than to leave their employment (i.e., reduction of hours, change in the shifts, direct change in work duties). A Mandatory Vaccination Policy may not change an employee's specific Duties but merely changes the work environment and therefore an employee who voluntarily left employment because of a refusal to be vaccinated may not have had Just Cause.”

   ‘May not’ is clearly conditional, based upon Fact-Finding. Purolator’s own policies & communique repeatedly states this was a ‘Condition of Employment’ ² – one they knew they could not enforce via policy. ³ (cf. Problem #4: Purolator Management) Furthermore, the term ‘work environment’ is an invented term in this context that has no legal precedence or significance. It is an HR Term that refers to the ‘company culture’ & social conditions – or physical hazards on a factory floor – not changing workers’ personal medical health (internal biological ‘environment’) by requiring multiple irreversible injections of experimental mRNA ‘gene therapy’ immunisations.

   In order to properly determine that a client had Just Cause for voluntarily leaving their employment, thorough fact-finding must be conducted and documented to support the existence of exceptional circumstances. It would be insufficient to rely only on a client’s statement.”

   Where does this ‘exceptional circumstances’ requirement come from? The statute requires ‘no reasonable alternatives’. Involuntary Lock-Outs resulting from non-compliance with an unlawful policy – coercive medical mandates – is exactly ‘no alternative’. ‘Employer acting contrary to law’ is Just Cause by law. (EIA §29[c][xi])

    

2. Suspension or Dismissal (BE Memo: p.4-5)

   “Even if a policy was implemented after the employee was hired, the application of the policy could be viewed as reasonable in the context of the COVID-19 pandemic.”

   Since when is it ‘reasonable’ to investigate the ‘application’ of a policy, but refuse to examine the policy itself? This is nonsensical & clearly designed to limit requisite Fact-Finding. Besides, the application is problematic anyways: enforcing new, anti-contractual policies that unions have not ratified is ‘applying’ it – regardless of the policy’s content. The ‘application’ is a clear ‘breach of contract’. And ‘Could be?’ There is no discretion in the statutory requirement to Fact-Find for Just Cause. This isn’t about the policy’s reasonableness. It’s about Just Cause – whether the ‘employer acted contrary to law’ or made ‘significant changes’ to the Employment Contract. cf. EIA §29(c)(xi/vii/ix)

    

3. Leave of Absence (BE Memo: p.5)

   “The EI Legislation provides for Clients to be Disentitled from receiving Benefits if they have taken a voluntary leave of absence from their employment without Just Cause. To prove Just Cause, Clients must show that they had ‘no reasonable alternative’ but to take a Leave from their employment.”

   This definition intentionally [mis]conflates ‘Voluntary Leaving’ with ‘Taking Leave’ which are two separate conditions in the Just Cause clause. An approved ‘Admin Leave of Absence’ is ‘Taking Leave’.

   “For employers that choose to place employees on Leave Without Pay rather than imposing a Termination or Suspension for Misconduct, the Leave Without Pay could be considered equivalent to a Suspension, if the reason for the Leave Without Pay was non-compliance with the mandatory vaccination policy.”

   On what Grounds? By what Authority? Employers had the option of Disciplining & Suspending non-compliant workers. Some chose to do so. Most didn’t for obvious liability reasons.

   By mid-2022, Labour Arbitrators established the precedent that any Disciplinary Enforcement (Suspensions & Termination) for Non-Compliance was unreasonable under the ‘minimally impairing’ doctrine. ⁴

   “…beyond what is strictly necessary to accomplish its aims” (FireFighters: ¶263ff)

   and “less intrusive on the employee [] than fixing [their] record with a significant discipline.” (id. ¶313)

   Additionally, our own Grievance Arbitration also deemed this specific policy ultimately unreasonable (from: 2022-07-01) per the ‘proportionality’ doctrine. (Glass: [¶285-88]) ⁵

   It is also logically & legally inconsistent to equate ‘Admin Leave’ with ‘Suspension for Misconduct’. They are legally distinct. One is an Administratively Approved function that makes no mention of Misconduct, whereas, by definition, Suspension is the natural result of proven Misconduct – something which requires Fact-Finding.

    

4. Fact-Finding (BE Memo: p.9-10)

   “The Decision-maker is responsible for ensuring that Fact-Finding is complete before making a decision. ‘Complete’ means that all facts necessary to make a sound decision have been obtained and are included in the Claims file. [] In the case of a refusal to comply with a mandatory vaccination policy, fact-finding is essential for understanding the file. Certain elements must be on file: {Specific MVP-Only List}”

   By stating that ‘complete means’, this policy is explicitly redefining the pre-existing Statutory & Common Law definitions & processes involved. The list of Fact-Finding requirements that follows only lists policy-centric evidence. There is no mention of Contracts, despite being mentioned multiple times in the DBEP (§21.2.2) – and all throughout six years of documented historical precedent – in a policy that only applies to specific Claimants. (¶78,81, ¶118-20, ¶124, ¶294, FN-123f)

    

5. Processes & Procedures (BE Memo: p.10-11)

   “Processes & procedures in regards to EI Eligibility and the refusal to comply with a mandatory vaccination policy are available in the ORT. We ask that you share this guidance with all staff involved in the processing of Claims. Questions regarding this policy should be directed to Regional Business Expertise who may refer questions to the EI OPSD as appropriate. To streamline the analysis process, all questions must be accompanied by ‘complete fact-finding’ and a recommendation from the region.”

   ‘All Staff’ are required to comply with a policy that targets specific Claimants. Any questions about ‘process analysis’ require Agents to conduct ‘complete fact-finding’ as defined in this policy – not the historically, statutorily-defined processes. And non-compliance can result in Case escalations to the OPSD Management Team. This implies that Managerial Authority can be invoked when Agents follow the precedental pre-COVID Definitions & Processes – as opposed to these new discriminatory ones. By definition, treating one arbitrarily-selected group differently – or using different legal definitions and processes – is ‘discrimination.’ No ‘wrong’ ‘intent’ is required.

    

6. Other Problems: Medical & Religious Exemptions (BE Memo: p.7-9)

   “In some cases the employer could refuse to accept a medical certificate because it does not meet the conditions of the employer’s mandatory vaccination policy.”

   Since when does the ‘condition’ (read: opinion) of an HR Manager overrule the medical advice of a licensed, professional medical doctor? Similar arguments apply to the BE Memo’s attempt to override constitutionally-defined Religious protections.

 

Argumentation

As shown above, the BE Memo – which was enforced as an internal policy – targeted a specific sub-group of EI Claimants, creating new legal Definitions & Adjudication Procedures that must be followed when processing their Claims. This is precisely the dictionary definition of ‘discrimination’ – one based on “internal records that were not available to that party.” This is clearly deemed unreasonable per Vavilov.

Primarily: Leaves of Absence were explicitly [mis]conflated with Suspensions. Thousands of workers were put on Admin Leaves – not Disciplinary Suspensions – a policy option intentionally chosen by Employers after their own internal legal analysis. There was no legal basis to change facts (what Employers clearly stated) – what existing statute & precedent required – to enforce new Claim adjudication definitions & processes.

There were many business reasons for choosing to place workers on Leave – which maintained the employment relationship while the mandates were in place – something understood to be temporary in nature. There were also many legal reasons for using Admin Leaves instead of Suspensions, which invoke Disciplinary sections in Contracts.

(COVID-era Arbitral Precedence has deemed Suspensions ‘unreasonable’ for being ‘more excessive than necessary’ using Oakes & Irving Analyses. It is a factual error to arbitrarily change Employee Status from Approved Leave to Disciplinary Suspension.)

This is an undisclosed internal, binding ‘Benefits Eligibility’ (read: Adjudication) policy that targets a specific group of Claimants – only those who “refuse to comply with a mandatory vaccination policy.” This ‘Process & Procedure’ document ‘guides’ EI Case Workers through a custom decision-tree that results in findings of ineligibility at virtually every branch, by undermining established statutory definitions & processes – and creating new precedent. If this discriminatory ‘policy’ was not bad enough already, Claims Agents were warned that questions or non-compliance could result in referrals to Management.

This Policy covertly inverted ‘Benefit of Doubt’: Instead of workers being granted [justified] caution re. new, experimental medical technologies – while pre-existing, non-mandate policies were already effective – the concept of ‘exceptional circumstances’ was invented with an undefined Burden of Proof that was almost impossible to meet. This subtly assigned Benefit of the Doubt to the Employer, which violates EIA §49(2).

The statutorily-mandated Fact-Finding process for Just Cause was also changed to remove all reference to – and analysis of – employment contracts, which was long-required by the DBEP (under precedental interpretation of EIA §51.) This invented legal concept of ‘exceptional circumstances’ also removed the necessity to factor the 14 Just Cause Reasons codified in the EI Act, including §29(c)(xi/vii/ix). (& Arguably [‘x/xiii’])

Although clearly discriminatory, I am not arguing ‘Discrimination’. I am arguing the fundamental unfairness & unreasonableness of compelling EI Claims Agents to use different – and completely novel – definitions & processes when adjudicating Claims. New adjudication practices that undermine publicly-defined, historically-established ones found in statute & precedent – using internal policies that only apply to selected Claimants, listed in documents only available through obscure ATIP litigation.

 

Application

Creating special, binding policies – with new Tests & Definitions – that only target specific groups of Claimants violates ‘Procedural Fairness’ per FCA §18.1(4)(b).

Keeping these targeted Policies internal & unpublished – until after Claimants litigate multiple ATIPs – also violates ‘Procedural Fairness’ per FCA §18.1(4)(b).

This also violates the Vavilov ‘internal records’ reasonableness factor. (¶95)

 

Decision

We respectfully ask this Court to Quash this Decision as being Unreasonable. Specifically, the CEIC Case Agents were bound by internal, undisclosed policy documents that ‘guided’ them through Decision-making processes that were different from the publicly-documented ones. They used novel Tests & Definitions that do not appear anywhere in established EI Statutes, Policies & Case Law. Decision ‘Processes & Procedures’ that only target a specific sub-group of Claimants – ‘C19-MM’ Cases.

Internal Rules: We need Clarity & Consistency around How & When Undisclosed Internal Policies can be applied to EI Decisions. At minimum, anything Internal that is determinative to the Decision should be Disclosed, so that it can be examined for any Legal Errors. This directly impacts the ‘Coherent Reasoning’ and ‘Meaningful Reasons’ factors defined in Vavilov.

 

Sources:

BE-2021-10 (‘BE-Memo’): EI Eligibility & Refusal to Comply with a Mandatory Vaccination Policy
https://Justice4EIMisconduct.com/assets/5-BEMemo/EI-OPSD-BEMemo.pdf

Lex Acker Affidavit (BE-Memo ATIPs):
https://Justice4EIMisconduct.com/assets/5-BEMemo/Lex-Acker-Affidavit.pdf

 

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1. (‘DA-694’) DA v. CEIC [¶46] (2024 SST 26). (‘Exceptional circumstances’ only go one way?)

2. I provided documentary evidence that proved Purolator’s Senior Leadership considered this new, non-union-approved policy a ‘Condition of Employment’ – from the beginning of my SST Proceedings – and I have argued it at every available opportunity. (B: p.254, ¶1,3 [RGD8-48]; SST-GD: p.114 [RDG8-11]; SST-AD: p.186 [ADN6-21]; Affidavit: ¶49; Factum: ¶220-22)

3. As above, the fact that Purolator’s (Executive) admitted in writing that they had no legal grounds to enforce mandatory [experimental] medical treatments, has been proven & argued from the beginning. (B: p.225 [RGD8-19]; SST-GD: p.115 [RDG8-12]; SST-AD: p.186 [ADN6-21]; Affidavit: ¶9; Factum: ¶220-22)

(Executive): “Folks absolutely zero intent to make vaccines mandatory. We would never do that and couldn’t even if we wanted to!”)

4. (‘Toronto FireFighters’) Holding: While MVPs were initially deemed reasonable, Disciplinary Enforcement was not, as that has “nothing to do with [achieving] the policy’s objectives.” (¶263f)

5. (‘Glass’) 2023 (CA LA) 120937: Teamsters Local #31 v. Purolator Canada (¶285-88)