Human Resources Committee on March 3rd, 2011

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

All right. I appreciate where you're coming from. I think my first question would address that. As a lawyer, I know that if you had the opportunity to appeal only if you lost, I'd find that very favourable to someone like me who is practising, for sure.

Anyhow, those are all the questions and comments I have, Madam Chair.

[The Chair, Conservative, Candice Bergen]

All right.

Thank you very much.

I will suspend for two minutes.

Thank you very much to the witnesses for being here.

You're dismissed.

I will ask the other witnesses to come in for the second hour.

[The Chair, Conservative, Candice Bergen]

We will now begin the second hour of our meeting. May I have everyone's attention, please?

We have just two of the witnesses who were to appear. Two of the four are here. During the next 45 minutes, hopefully the other two will arrive.

If not, we're very pleased to have Monsieur Bélanger and Monsieur Bergeron with us today.

Each one of you has seven minutes to make a presentation. I would just ask you to watch me, and I'll let you know when your seven minutes has come to an end.

We'll begin with Monsieur Bélanger, please.

[Yvon Bélanger, Spokesperson, Conseil national des chômeurs et chômeuses]

Madam Chair, first I would like to thank you for inviting me to testify.

I represent the Conseil national des chômeurs et chômeuses, which has designated one of its base groups to appear before you as a result of its experience with the boards of referees. I work for the Mouvement Action-Chômage de Saint-Hyacinthe. We belong to one of the base groups of the Conseil national des chômeurs et chômeuses de Montréal.

I would like to divide my presentation into three parts. First, I would like to talk about representation.

The Mouvement Action-Chômage de Saint-Hyacinthe covers a large area: part of the riding of Chambly—Borduas, the constituencies of Saint-Hyacinthe—Bagot and Shefford as well as the constituency of Johnson. Since 2008, 2009 and 2010, there has been a much larger volume of employment insurance claims. Consequently, there's been a larger number of denials and disqualifications of claimants. That has resulted in an increasing workload for our counsel in the past two or three years.

When we meet with people, we divide them into three categories. First are those who were informed at the time, or almost at the time, when the decision was made that it could be appealed. In the case of a disqualification decision, the people have often been informed at the start of the process by the commission's officers that the decision could be appealed. They also know that they can appeal a decision through the website of the Department of Human Resources and Skills Development or through groups, lawyers and so on who can represent them.

Then there is the category of people who have a little more information. First we try to inform them or to train and guide them so that they can defend themselves alone before the board of referees. We even conduct follow-up, but these individuals are able to do a good part of the work. This usually corresponds to the objectives, criteria and procedures of the board with regard to its practices.

Another group includes the people who have been informed a little late. The time period for appealing is almost up. From time to time, people also come to our offices when they already have their appeal docket in their hands and the hearing is scheduled for a few days later.

We're increasingly seeing more people 50 years of age and over and young drop-outs who do not have that much education. Our task is not to judge them, but this is a situation that we can see in the field. These people are often more uninformed about procedures when they come to meet with us. They have comprehension, cognitive or other problems.

This automatically results in a first request for postponement until we can properly prepare the docket and see whether we have a case that can be defended. Then we have to find the necessary evidence to justify whether or not to follow or guide the person before the board of referees.

As for the third group, regardless of whether its members belong to the first or second group, we make a selection among all the people who come to meet with us to give priority to those who are not entitled to legal aid for representation before the board of referees or to those who cannot afford a lawyer. So we give priority to those kinds of people. As for the others, we redirect them to legal aid where they are entitled to a lawyer.

People may legitimately have a representative. The commission permits that and the act does as well. So these people have a right to take the necessary time and to look for evidence with which they can present their case to the board of referees. This frequently causes problems in our region as a result of the volume and delays we have to absorb as a result of legal aid. Many people who use legal aid get appointments after 30 or 45 days. If we know the time frames set by the board of referees when we receive the appeal docket, our organization has a common practice that works quite well following a few adjustments. The hearing date is usually set 10 days after receipt of the appeal docket.

After the first postponement, the clerk always tries to set a date within 45 days, but even in those conditions, if we refer people to legal aid, once again we will be unable to meet the time frames. This causes more hearing postponements. At some point, the chair may legitimately say that it will be accepted one last time on a peremptory basis, which causes further problems, whether we like it or not. We nevertheless attend the hearing in view of the fact that it is peremptory, to request another postponement of the hearing in person. The request is often denied, and the board of referees nevertheless reaches a decision on the case. Since this constitutes a denial of justice, we automatically appeal to the umpire, which penalizes the worker, since the procedure is too limited. There are cases in which the process has taken 14 months. Lastly, we appear once again before the board of referees to present the case and, in the majority of cases, win it.

I believe there's an important problem that should be raised with regard to representation. The volume is heavy, legal aid delays are long and there's a high demand for lawyers, who are overworked. They are unable to deal with the dates proposed by the clerks. That results in a lot of postponements of hearing dates, which results in serious denial of justice problems and needless expense for the commission. As the gentleman mentioned earlier regarding representation, the officers frequently go around the representatives. We often face this problem in our organization, but we recently made a readjustment after meeting with the regional chief, Suzette Perreault. That stabilized the situation somewhat, but there is still work to be done on this matter.

Since I only have one minute left, I'm going to address the most important point—

[The Chair, Conservative, Candice Bergen]

Actually, your time is up. You've gone over the seven minutes, but we would like to hear your suggestions, so hopefully during the question and answer time, that would be a great time to finish your presentation.

Thank you so much.

Mr. Bergeron, seven minutes, please.

[Sylvain Bergeron, Coordinator, LASTUSE du Saguenay]

Thank you, Madam Chair.

Thank you for inviting us to state our opinion on the board of referees and its procedures. First I want to tell you that a number of points that we're going to raise about the procedures are peripheral. So I may hear a few points of order being raised during my presentation.

The issue of appointments has been raised, and I won't go back over it. I say it's peripheral because it can have an impact. In the brief I sent you, I cite the example of one chair of a board of referees—and I won't tell you the name I give him in everyday life—who is completely lost. We tell him what page we're on and he turns over the pages for half an hour. He's utterly unable to follow, to the point where the other members of the board have to get up and show him the page. When we tell him it's time to focus on the case in view of the fact that we've been in the room for an hour and a half, he becomes aggressive. As I mentioned in the brief, the other members of the board of referees had to request an adjournment on two occasions because I was about to crawl across the table. The appointment criteria have been mentioned, but I believe that the cognitive faculties of one board chair should also be assessed.

I would also like to talk about the rare cases that I do not win. One board chair was appointed, but, curiously, that gentleman was a Conservative Party candidate in the last election campaign—

[The Chair, Conservative, Candice Bergen]

Same point of order...?

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

It's the same point of order. I haven't objected when he's travelled and traversed in various ways, including how the board functions inside and whether someone shows someone the page they're on. It happens in committee perhaps at times, but that's not relevant to this study. So I think the witness should not go straying beyond at least some reasonable limits of the confines of the study.

[The Chair, Conservative, Candice Bergen]

Thank you for your intervention.

We do have a very narrow scope of this study, so if you could, please remain with the actual procedures of the referee committee. Thank you.

[Sylvain Bergeron]

I'll stop there. I'll just say that in the procedures, you have to respect some rules of justice. The impartiality is a rule. If you say in the newspaper, “I am against the employment insurance system”, you are not impartial.

Pardon me, but I'm going to go back to my first language.

Earlier, we briefly mentioned the way information is manipulated in certain cases we defend. The commission prepares the docket and the board of referees reviews it. We appeal, but it's the commission that prepares the docket.

In the case of one person who went back to part-time studies while receiving employment insurance benefits, the commission held that, according to case law, unavailability could not be rebutted except in exceptional circumstances. However, that's false. In fact, the case law states that it can be rebutted "by proof of exceptional circumstances". An entire list of circumstances has been established in case law. The dockets are very often manipulated.

I cite case law in all cases involving misconduct issues. The commission and the board of referees stated, because it was written in the docket, that the judge had dismissed the case. However, in the well-known decision in CUB 28711, the judge wrote that the claimant's appeal was allowed and the decision to disqualify him from receiving benefits was rescinded. So this was a procedural matter. When a board of referees relies on incorrect information, you're certain to lose. This is another issue related to the commission's influence.

Earlier it was mentioned that people sometimes try to get in touch with us. And yet, the opposite is the case. The commission people never try to call me. In 26 years of practice, I have never received a phone call from an officer. They don't want to speak to me. I addressed the issue of influence. When the chair of one board of referees told me at a hearing that a commission representative had come to see him and that I would have to submit more recent case law, that's illegal. That's written in the role of the board of referees and in the Employment Insurance Act. The commission must not interfere in cases. If these people could show that the case law I submit to a board of referees has been overturned by a superior body, they could do it in the context of their docket, but they shouldn't call the chair of a board of referees. That's undue influence.

As for the EI compassionate care benefit, I find it hard to understand how a board of referees can act when a case involving the code of ethics of the physicians of Quebec is submitted to it. According to a letter written by the head of the order of physicians, no one is entitled to use a document stating that a person will die within 26 weeks. The commission stated that, if it was not proven that that individual would die within the next 26 weeks, he would not be entitled to benefits. The physician does not even have a legal right to do that. Rules are imposed and the board does not take the evidence into account.

You have my brief, which contains recommendations. The idea is to make the board of referees system independent from the commission. In closing, I'm going to read you a sentence from a document that I use a lot when I defend my cases. Entitled Introduction to Tribunal Proceedings in Employment Insurance, this document is used to train members of the board of referees. It is written by Philippe Garant and his brother, two experts on tribunal proceedings.

[The Chair, Conservative, Candice Bergen]

Thank you very much. You're right in the time slot. Thank you for that.

This is good. Our third witness has just arrived.

We'll just give you a moment, as I know you just came into the room, and then we'd be very pleased to hear your presentation.

Madame Arruda, thank you for being here. We're glad you made it. We'll have you give us a seven-minute presentation, and we do keep time on the presentations, so if you watch me I'll let you know when you're down to one minute. Following that, we'll have questions and answers.

If you're ready, could you please give us your presentation?

[Marie-Hélène Arruda, Coordinator, Mouvement autonome et solidaire des sans-emploi (réseau québécois)]

First of all, I would like to apologize for being late. I had a little problem. I got lost.

I am the coordinator of the Mouvement autonome et solidaire des sans-emploi, a Quebec network of groups representing the unemployed in Quebec. We have some 15 members in Quebec. They are called upon to represent citizens and claimants before the boards of referees.

One of my colleagues was supposed to be here with me today. Unfortunately, he was unable to come. So I will be passing on what he wanted to tell you today.

There are problems with the boards of referees. However, I would first like to emphasize that our members appreciate the quite informal nature of the board of referees and the fact that the procedure does not involve too much red tape and is thus more readily accessible to citizens.

With regard to the problems, there is the issue of training for members of the boards of referees. We wonder about the fact that training is given by the Employment Insurance Commission. For that reason, there may be a lack of neutrality or impartiality among members of the boards of referees. We also wonder how the members are appointed to those boards, on what basis and in accordance with what criteria.

There are also concerns regarding the decisions rendered. They are usually rendered the same day. We wonder whether enough time is devoted to writing the decisions. In fact, we often feel that the reports are incomplete. For example, following a decision, the board often does not say in its written report why a certain item of evidence was not considered. Ultimately, the decisions are not sufficiently substantiated or clear enough. There is a lack of evidence. That is what I have been told.

Our member groups also see a high turnover among staff of the boards of referees and they wonder why. In Montreal, among other places, there is really continuous staff turnover. Terms are not renewed. That may result in problems because it's often experienced people who leave. Their terms are not renewed and we therefore may wind up with people who have less experience. We wonder why these positions are not renewed.

We also suspect a lack of objectivity and impartiality on the part of certain members of the boards of referees. Some of our member organizations have told me on a number of occasions that they could predict who was going to win or lose a case before the board of referees based on the individuals sitting on it. For example, if such and such a person chairs the board, they know there will be virtually nothing to do. In certain cases as well—for example, in challenging a dismissal for misconduct—some know that, if such and such a member sits on the board of referees, the case will be lost because all misconduct cases are lost before those persons in particular. So some questions arise concerning the neutrality of members of the board of referees.

That's virtually all I had to say.

[The Chair, Conservative, Candice Bergen]

Thank you. You did a very good job in coming in quickly and without notes, so thank you for that. I'm sure the members will have questions, so you can add to your presentation.

[Marie-Hélène Arruda]

Thank you.

[The Chair, Conservative, Candice Bergen]

We will have time for a seven-minute round. If any of the members would like to share their time with their colleagues, they're open to do that. If not, the questions and answers are included in that time allotment, so I'll let you know if you're reaching the end of the question and answer time.

We'll begin with the Liberals.

Mr. Savage, seven minutes, please.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

Thanks very much.

Thank you all for coming, and especially Madame Arruda, for coming in cold, out of the cold, and giving us your views on this.

I want to try to narrow down specific recommendations.

Monsieur Bergeron, you gave us some very good recommendations here. Some of them are more general, but some are quite specific.

I want to go to an issue that was raised by at least two of you. This is the idea of who provides the training to the boards of referees.

One of your recommendations, Monsieur Bergeron, is that the training should be given by an independent body.

Madame Arruda, you mentioned the issue of training either in the case of existing members or specifically when an experienced member leaves and a new one comes in.

I'll leave aside for now the issue of how they're appointed so that we don't upset Mr. Komarnicki, but I do want to just ask you, who should be doing the training? How should the training be done, in your view, for boards of referees?

[Sylvain Bergeron]

I couldn't exactly say. It might seem like a lack of objectivity. However, the legal representatives of the union parties are trained by a law firm in Montreal. They are trained entirely outside the system. They receive legal training.

As I say in my document, three parties are involved in a hearing: the worker, the employer and the commission. If the members of the board of referees are trained by one of the three parties, that is to say the commission, there is an appearance of conflict of interest. Consequently, law firms should really provide the training. Some firms are specialized in unemployment issues. They are the ones that could provide the best training. The existing documents are very good; they are even excellent. I have them all. However, a person who offers training can influence future opinions and interpretations.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

Madame Arruda.

[Marie-Hélène Arruda]

In fact, I believe that what Mr. Bergeron is proposing is a good idea. It's true that it's hard to determine who should provide the training. If it's not the commission, perhaps independent lawyers could do it. There might perhaps be a way to develop a joint training plan by bring together the commission, representatives of unemployed workers groups and lawyers to ensure that the training is a little more impartial or that it reflects both viewpoints.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

Thank you.

You made a comment that was interesting. You indicated that these sessions are quite informal and that by and large workers are quite comfortable. We heard in the previous panel from Monsieur Labarre or Madame Gendron that they thought it wasn't quite as formal as it should be. Is it your experience and the experience of other members that in terms of the hearings themselves with the boards of referees they are sufficiently comfortable?

[Marie-Hélène Arruda]

In fact, I couldn't really answer you because I've never attended a board of referees session. I'm reporting to you what our members have told me. I was told the procedure wasn't too rigid compared to that of a court or a legal body. It's easier for a claimant to appear before a board of referees. However, I don't know what other witnesses have said. I'm sorry. I was told that the procedure what quite flexible.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

Thank you.

Monsieur Bergeron.

[Sylvain Bergeron]

As I said earlier, I've been representing unemployed workers for 26 years this year, and it always depends on the person who chairs the board. Some chairpersons can overdo their role. That can happen, but it's generally very informal.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

That never happens here in Ottawa, I can assure you. People never take themselves too seriously.

[Some hon. members]

Oh, oh!