Key Questions :: Justice 4 EI Misconduct
12 Primary Questions: Points at Issue
Justice 4 EI Misconduct: 12 Key Questions
Disclaimer: This site contains the Personal Opinions of Canadian Citizens. All Claims are being Tested in Court. Until then, everything is for Entertainment Purposes only.
(Factum ¶7): This Case is not about the ‘reasonableness’ of my employer’s policies. It’s about their [un]Lawfulness – and the Rule of Law – which are the bedrock foundation of our legal system… (cf. CBoR: §Preamble)
Questions at Issue
On its surface, this appears to be a simple case. It is one of hundreds of similar cases working its way through our legal system. However, when one looks a little deeper, this becomes a case study of Murphy’s Law on a national scale. It reveals a ‘comedy of errors’ – a long series of missteps that combined to define one of the most Unjust moments in Canadian history…
At its core are 12 Fundamental Questions, most of which would have appeared non-controversial & self-evident in 2019. However, due to the confluence of unprecedented, interrelated global crises (often demanding fast, high-impact, wide-ranging decision-making) – combined with the fear, uncertainty & doubt that plagued society during the COVID-19 Pandemic – the Rule of Law was ignored. We abandoned our nation’s foundation. Our first & second branches of government arguably overstepped their legal boundaries, and now our Constitutional system of government is reliant upon our third branch – our Courts – to restore the balance of Rule of Law. Justice demands it.
These 12 questions fit neatly into four categories: Government, Employers, Adjudicators & Employment Insurance. All of them are directly relevant to this case, although the first two questions – about Government – are arguably outside the scope of this Judicial Review. (For that reason, I will not make any Arguments based on them.) But I – and all Canadians – would ask for your help. As the arbiter of Justice in our nation, we ask that you provide certainty. Please give us clear answers to these two additional questions, along with the ten that form the legal foundation of this case. Clarity & Direction are needed to ensure that the devastating consequences of this injustice never happen again – as the human, financial & societal costs have torn the fabric of our nation apart…
Government [2x] (Rule of Law)
Question #1: Who has Jurisdiction for Specific Health-Related Matters?
Part IV of our Constitution lays out the ‘Distribution of Legislative Powers’.
§91(11) places ‘Quarantine’ under the exclusive jurisdiction of Federal Parliament, yet most of the COVID-19 Quarantine Orders originated from Provincial Legislatures. Knowing this, most Legislatures rebranded their Quarantine Orders as ‘Stay at-Home Orders’ instead. This was the first time in Canadian history that Healthy citizens were Quarantined by Law. (It was so unprecedented, that most regional police forces made public proclamations saying that they wouldn’t enforce ‘unconstitutional’ orders.) Was this Constitutional? Or was this Unlawful? And did it Violate the ‘Separation of Powers’?
The Federal Minister of Health is governed by the Dept. of Health Act.
[§12: 'Jurisdiction']: “Nothing in this Act or the regulations authorizes the Minister [of Health] or any officer or employee of the Dept. [of Health] to exercise any jurisdiction or control over any Health Authority operating under the laws of any province.”
Despite this clear separation of authority & jurisdiction, many ‘federally-regulated’ corporations – geographically located within Provinces & Regions – found themselves trapped, being subject to provincial Health Orders which conflicted with the Federal mandates. And it was usually Municipal [By-Law Enforcement] Officers who were actively auditing & enforcing the local (provincial & regional) Public Health policies. Whose rules take precedence in this difficult situation?
Question #2: Can Government Use Corporations to Violate Rights ‘by Proxy’? (‘State Action’)
Is ‘State Action’ Constitutional (or Lawful)? It is clearly Unlawful for Parliament, Provincial Legislatures & Government Agencies to violate our Citizens’ Charter Rights (subject to §1: ‘Reasonable Limits’). Parliament is also forbidden from violating the Canadian Bill of Rights, which includes ‘Enjoyment of Property’ Rights not found in the Charter.
State Action is the cornerstone of Fascism (aka ‘Public-Private-Partnerships’). Can Government Agents legally Mandate private corporations to institute internal policies that violate constitutionally-protected rights – and then force compliance with these policies using government powers? (Including their greatest power – the ‘Power of the Purse’?) Over one million Canadians would like a definitive answer to this pressing question please. (Only You can do so…)
Employers [3x] (Rule of Law)
Question #3: Can Corporate Policy Override Binding Legislation?
Can companies write policies granting themselves the right to break the law?
During the Pandemic, many companies implemented new corporate policies with terms that violated binding legislation – both federal & provincial statutes.
Can private companies legally implement policies that contravene active, binding Legislation? Can they require middle management to break the law by enforcing it? Can they use Discipline to compel compliance with said policies? Can [contractual] ‘Management Rights’ overrule Acts of Parliament & Provincial Legislatures?
Question #4: Can Corporate Policy Violate Collective Agreements?
Can companies write policies granting themselves the right to break contracts/CBAs?
During the Pandemic, many corporations implemented corporate policies with terms that violated their workers’ Employment Contracts (or CBAs [Collective Agreements] in Unionised workplaces). Usually, new changes to pre-existing Contracts cannot be compelled – amending Contracts require Employee Consent & Consideration – or majority Union Ratification.
Can Employers lawfully make unilateral changes to fundamental Terms in existing Employment Contracts without prior Consent? Can corporate policies be implemented with terms that contradict existing Contracts? Can Companies Breach Contracts in their attempt to enforce new Policy? And can they do so without Liability for Breaking them?
Which entity takes precedence when they conflict: Private Contracts or Corporate Policy? (And can either of these Instruments legally overrule applicable Legislation?)
Question #5: When Policies Do Violate Them, are They Legally Active?
When such absurd & nullified policies are issued, are they binding notwithstanding?
During the Pandemic, numerous corporations implemented new policies that violated active Legislation or Employment Contracts – often both. That raises a crucial question: what is the legal status of such a policy? Since it is Unlawful and/or a Breach of Contract, is it still considered Active & Binding, notwithstanding?
Like a royally-assented Statutory Instrument [albeit improperly so], does it require a Court-Order to Strike down? Or is it de facto Nullified ab initio? If not, is it still Binding in the interim? When do Nullity & Severability clauses void offending policies (or amendments)? And if enforcement action is threatened (read: coerced), at what point does Liability kick in: upon Issuance or Enforcement?
Who is Liable? the Company, the Policy Owner, or the Employee who enforces it? What happens to middle managers who refuse to enforce compliance over coworkers?
Adjudicators [5x] (Rule of Law / Fairness)
Question #6: Are Contracts & Common Law Ultra Vires for EI Adjudicators?
CEIC & SST ADMs claim they are – unless they need to cite them to Deny Benefits.
Since the Pandemic started, most EI Benefits Adjudicators (SC/EI, CEIC & SST) claim that it is ultra vires to consider Contracts & Common Law principles. Therefore, the ‘only question that matters’ is ‘whether the Policy was broken’: whether that Policy was Unlawful (or Annulled) is allegedly ‘irrelevant’ to the Decision.
This is contradictory: the only Reason that corporate policy is binding is because ‘Management Rights’ flow out of Employment Contracts. And many thousands of EI Claimants have been Denied EI (since 1996) for ‘Contract Violations’. How can that Finding be made without Considering the Contract?
It also seems a violation of the Fairness Principle to Deny EI Claimants for ‘Breaking their Contract’, while simultaneously refusing to Find in their Favour when the Employer Breaches it (‘Not at Fault’). Why do so many EI Decisions quote sections from Contracts as proof that Claimants are Disentitled or Disqualified?
If EI Decisions can be based on Breach of Contract, it needs to work both ways. And it is patently absurd to say that Claimants cannot be Disentitled for Breach of Contract; therefore, an Employer’s Breach must carry equal weight.
Combined with the previous three questions, this now presents the next logical step:
IF corporate policies are Unlawful – or Breach the Contract – how can that be ultra vires during EI Benefits Adjudication? Therefore, shouldn’t the Policy be examined before Finding whether it was Violated? (Basic Order-of-Operations)
Question #7: What Would Be Acceptable Lawfulness Indicators/Tests?
By what standards should Policies be deemed Lawful, Contractual & Binding?
If this honourable Court Finds that Justice & the Rule of Law demand also examining whether Employers Broke the Law (as EIA §29(c) Requires) OR their Contracts, what is the Criteria? By what Standard? Surely the same as applies to Claimants… (Using ‘Preponderance of Evidence’ or ‘Balance of Probabilities’)
What about additional Tests? How about Arbitration Rulings for any Grievances directly related to the Separation? What about the 40 ‘Just Cause’ Reasons found in the Jurisprudence – and Codified into the EI Act (in 14 Categories)? Isn’t that precisely Why they were listed there to begin with‽ Under ‘Interpretation’ in the section entitled ‘Disqualification & Disentitlement’‽ Isn’t this the Legislative Intent?
Question #8: Can Tribunals Violate Home Statutes by citing Case Law?
They are created & bound by these Statutes: ADM Deference depends on this fact.
The EI Act §29(c) states:
“Just Cause for voluntarily leaving an employment or taking Leave from an employment exists IF the Claimant had No Reasonable Alternative to Leaving or taking Leave, having regard to all the circumstances, including:”
(This is followed by a list of 14 Reasons, including):
(xi) practices of an employer that are contrary to law,
(vii) significant modification of terms and conditions respecting wages or salary,
(ix) significant changes in work duties,
(xiii) undue pressure by an employer on the claimant to leave their employment,
(Note that it states both ‘Voluntarily Leaving’ and ‘Taking Leave’. Why‽)
Since the Pandemic, EI Benefits Adjudicators have been [ab]using Case Law to override this statutory requirement to Fact-Find for ‘Just Cause’. (I thought Common Law principles were ultra vires? Or only when they Disqualify Claimants…)
Is it Reasonable for EI Adjudicators to apply various common law tests before doing what their Home Statute requires them to do? What about blanket refusal? Isn’t the whole principle of Deference to ADMs (‘Administrative Decision Makers’) based on the primacy of Legislative Intent Codified into Law taking Precedence (over Common Law)?
The EIA’s ‘Just Cause’ list primarily contains unethical, unsafe & law-breaking behaviour by the Employer. How can one determine whether EI Benefits are warranted without conducting the research into Just Cause? EIA §29(c)(xi) specifically defines “practices of an Employer that are Contrary to Law” as ‘Just Cause’.
Going back to §29(c): “Just Cause […] exists IF…” IF is a Conditional Operator. It is not Discretionary. There is no ‘may’. ‘Just Cause’ Exists IF any of the specified situations are True – and EI Adjudicators are intentionally refusing their statutory obligation to Fact-Find for ‘all the circumstances’ pertaining to ‘Just Cause’. How is this Fair? Or considered ‘Administering Justice’?
If an Employer is breaking the law, would you expect them to admit to it? Or would you expect them to claim ‘Worker Misconduct’? Therefore, the only way to fulfil the Legislative Intent is to Fact-Find for Just Cause. Doesn’t it violate the EI Act to rule that a ‘common law test’ negates the clear statutory duty to determine whether Just Cause exists in employment separations? That IS the EIA’s primary basis for determining whether to Grant or Deny Benefits… (i.e. Disqualify & Disentitle)
Question #9: Can the CEIC & SST Members Selectively Apply the Law?
What happens when they treat like cases differently, based on the desired Outcome?
Since the Pandemic started, EI Adjudicators have been selectively applying various legal & common law principles to justify Denying EI Benefits. I will examine many detailed specifics later, but here is one example:
KVP Test:1 This Test originated in Labour Arbitration (in 1965) & has since been endorsed by our Supreme Court.2 It lists 6 Qualifying Factors that must be met before Employers can unilaterally impose a new Rule without Union Ratification.
[KVP: p.85] A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites: (6 in total)
1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable…
KVP has been cited in 24 SST Cases since the Pandemic started. 12x it was unilaterally cited by TMs to Justify using new, non-CBA-compliant corporate policies to Disqualify the EI Claimants. But 12x, when Argued by Claimants (because the policy in question Failed KVP Test #1), their TMs ruled that KVP was ultra vires & not arguable (notwithstanding it would have Changed the Outcome). In some cases, it was the same TM applying KVP inversely, ensuring the result was still Disentitlement. Is this Justice‽
This is only one example [of many] of ‘selectively applying’ the Law to ‘reverse-engineer’ Decisions. A detailed analysis follows, but this should illustrate my point for now…
Question #10: Can They Use Internal & Undisclosed Info in their Decisions?
Is it Fair & Reasonable to use unpublished information to Decide Cases?
There are many critical differences between Admin Tribunals & Courts of Law. One key contrast is Transparency. In Trials, there is both a Duty to Disclose and a Discovery process, by which both sides gain full transparency. But there is No Transparency requirement in Tribunals – or during J.R. of their Decisions. In fact, the complete contextual picture is not even available to the Court[s].
For example, the ‘DESDA’ (§45.1(1)[b]), permits the SST Chairperson to “issue Guidelines in writing […] to assist Members in carrying out their duties.” There are similar Rules in place for the CEIC & SC/EI. This provides for a substantial amount of internal documentation that can Influence (even Bind) ADM Decisions that Claimants & the Courts cannot see. The infamous ‘BE Memo’ (2021-10) obtained from SC/EI [only after multiple ATIPs] is just one example… (This Memo potentially influenced thousands of EI Benefits Denials – including this one – and I cannot enter it into Evidence‽)
Does this institutionalised Lack of Transparency violate the Fairness Principle?
The governing Administrative Law Case is Vavilov. (2019 SCC 65: Canada [MC&I] v. _)
[Vavilov: ¶95]: …Reviewing Courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent […] It would therefore be unacceptable for an ADM to […] expect that its Decision would be upheld on the basis of internal records that were not available to that party.
EI Benefits [2x] (Fairness / Rule of Law)
Question #11: If Wrong about EI Funding Model, Who Gets the ‘Benefit of Doubt’?
Some SST-EI Precedent is based on Legal & Factual Errors re. EI Funding sources & flows.
One commonly repeated maxim when Denying EI Benefits is:
[Dubeau: ⁋36]: “It is Not the responsibility of Canadian Taxpayers to Assume the Cost of Wrongful Conduct by an Employer by way of Employment Insurance Benefits.”
This recurring reason is echoed in (McNamara [⁋23]), (Paradis [⁋34]), and numerous Pandemic-Mandate related SST Cases. I think most Canadians would agree with this sentiment. That said, this oft-cited ‘justification’ for Denying EI Claims is an Error.
The Canadian Taxpayers have NOT Contributed to the EI Program since 1990. (In Bill C-21) The EI Operating Account (‘EIOA’) is 100% Funded by Employer & Employee Premiums only. (Based on: 58%/42% Split)
[EI Act: §67]: “…a Person employed in insurable employment shall pay […] a Premium equal to their insurable earnings multiplied by the Premium Rate […]”
[EI Act: §68]: “…an Employer shall pay a Premium equal to 1.4 times the Employees’ Premiums that the Employer is required to deduct […]”
The EIOA is also required to run revenue neutral. There are no other revenue sources.
[EI Act: §66.1]: “The CEIC shall set the Premium Rate for each year in order to generate just enough Premium Revenue to ensure that […] the total of the amounts credited to the EIOA after December 31 is equal to the total of the amounts charged to that Account after that date.”
This means that it is only the Workers who ‘pay’ for their Employers’ wrongful conduct. (Whether Unlawful OR Breach of Contract) Denying EI Benefits in these situations Deprives already aggrieved citizens of Justice, as they have already prepaid their Premiums for exactly this situation. (‘Just Cause’ when “Employers Act Contrary to Law”) There is NO Financial Impact on the Taxbase to Grant their Benefits Claims. (Premiums will increase if & whenever necessary to cover increased Benefits payouts.)
Is this Not Unjust‽ First, Claimants Lose their Livelihood – “through No Fault of their Own” (due to their Employer’s Lawbreaking or Breach of Contract) – and now they are also Denied EI (their only means of Sustenance) until they find another job‽ All to ‘Save the Taxpayers’ $0‽ To compound this Injustice, our nation was deep in a ‘once-in-a-century’ Pandemic with mass unemployment, alongside record Inflation & Food Bank usage… 165+ Canadians were provided this erroneous Reason when Denied their EI Benefits for alleged ‘Misconduct’. Is this Fair or Just?
[Vavilov: ⁋133-35]: “It is well established that individuals are entitled to greater procedural protection when the Decision in question involves the potential for significant personal impact or harm: (Baker: ¶25). […] The principle of responsive justification means that if a Decision has particularly harsh consequences for the affected individual, the ADM must explain why its Decision best reflects the Legislature’s Intention. This includes Decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood. […] Many ADMs are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of ADMs to ensure that their Reasons demonstrate that they have considered the consequences of a Decision and that those consequences are justified in light of the facts and law.”
Considering this, what is the Legislative Intent behind this Requirement?
[EI Act: §49(2)]: “The CEIC shall give the Benefit of the Doubt to the Claimant on the issue of whether any circumstances or conditions exist that have the effect of Disqualifying the Claimant under §30 or Disentitling the Claimant under §31-§33, IF the evidence on each side of the issue is equally balanced.”
Isn’t this Parliament codifying the legal concept of ‘Contra Proferentem’? Doesn’t this require EI Adjudicators to Decide for Claimants in situations wherein they have legal, statutorily-enumerated Just Cause grounds for Leaving their Employment?
(The ‘Plain Meaning’ of this clause seems to indicate that EI Claimants should still receive Benefits – even IF they ‘violated’ some internal policy – provided they still meet the EIA’s Just Cause requirements ‘on the balance of probabilities’…) :: (And I am not conceding that I violated any lawful, valid, enforceable policy.)
In other words, what happens when both parties ‘Breach the Contract’, but the Employer Breaks it first? What happens when it is the Employer’s willful actions that precipitate the Worker following suit? (i.e. Absent the Employer’s initial Breach, neither party would have separated employment.) If the [specious] Taxpayer consideration is removed from the Decision, how does the Just Cause Investigation Mandate and Claimant’s Benefit of Doubt advantage factor into such Decisions, based on the clear statutory Legislative Intent? What happens when properly ‘weighing both sides’ – instead of ‘just the Employee only’ – before rendering a Verdict?
Question #12: What Happens When Case Law is Wrong for Decades?
Does Justice require correcting Precedents based on Legal & Factual Errors?
The claim that ‘Taxpayers pay for EI’ is objectively False – something I already proved in my SST-AD written arguments, which included references (and links) to the relevant Parliamentary Hansards. (This has been true since Bill C-21 passed in 1990.) Our two-decade legacy of Honorable Judges unwittingly repeating this mistake – in honest attempts to fairly allocate public monies (and follow bad precedent) – is not Justification for continuing this Unjust situation. It is Parliament that decides how monies are allocated. The Courts are only supposed to ensure that the Executive branch follows these apportionments.
We argue that this is not happening. This present Injustice involves [at least] four different factors that undermine the Rule of Law: (1) Errors in Law (Not Fact-Finding for Just Cause & citing Irrelevant Case Law), (2) Errors in Fact (using ‘taxpayer burden’ to Justify Denying EI), (3) Acts & Omissions Outside Legal Jurisdiction (Not following their Home Statute, among others), and (4) Unfair Processes (‘Selective Application’ of Legal Principles & Deciding Cases based on Secret Information).
Under Vavilov, any one of these constitutes an ‘Unreasonable’ Decision. What about all four? Can this Court honestly Rule that the EIA’s Legislative Intent justifies Denying EI Benefits to Claimants with Just Cause for Leaving their Employment? Especially when there is No Impact on the Taxbase to Grant their Claim? Especially when it is the Employer who first breached their mutual obligations?
Especially when the impact is so devastating to so many desperate Canadians?
In Vavilov, a supermajority of our esteemed Supreme Court recognised the need to display Humility & Reverse Precedents which they recognised were objectively Unfair or Contrary to the Rule of Law. Will this Court do likewise?
Conclusion
Despite being a long list of questions, they are all relevant – each one builds upon the previous ones – and collectively, they expose the fundamental errors (‘house of cards’?) upon which these COVID-19 Mandate Misconduct (‘C19-MM’) EI Benefits Cases stand – or fall…
(‘KVP’) 1965 (ON-LA) 1009 [p.85]. This precedent was established in the 1965 ON Labour Arbitration case: “Re: Lumber & Sawmill Workers’ Union [‘LSWU’], Local #2537 v. KVP Co. Ltd.”
(‘Irving’) 2013 SCC 34 [¶24-27]. Our SCC solidified KVP as binding precedent in ‘CEPU Canada #30 v. Irving Pulp & Paper’. (CEPU: Comm., Energy & Paper-Workers Union of Canada)