Human Resources Committee on March 3rd, 2011

[Yvon Godin, NDP, Acadie—Bathurst, NB]

--and you will not turn off the volume when I speak, if I speak loud or not. This is Yvon Godin and you have to live with it.

[The Chair, Conservative, Candice Bergen]

All right. Thank you.

Now we'll begin the testimony with Mr. Desrosiers.

I do keep a pretty tight time schedule, so if you go over the seven minutes, I will have to let you know. Just keep an eye on me and I'll let you know when your time is complete. Thank you.

[Bertrand Desrosiers]

Good morning, everyone. It is an honour and a pleasure to come and testify today. This testimony will focus on two specific cases of businesses that have had to deal with the board of referees following a closing, a lock-out and the end of a labour dispute.

First, I will talk about Olymel in Saint-Simon, which shut down on April; 20, 2007. On September 24 following, 18 employees were called back to work, eight of whom were to resume their duties immediately, while the other 10 were on a recall list. The company, on the other hand, wanted to negotiate a new collective agreement for a distribution centre, whereas the business was a cutting plant. The union obviously refused. In response to that refusal, the company declared a lock-out on October 16, 2007. However, the plant had been considered officially closed since April 20, 2007.

The lock-out had serious consequences for the workers called back to work. When they applied for employment insurance, they were deemed ineligible because they were locked out. It must be said that, prior to being recalled to work by the company, these workers were either receiving employment insurance benefits or were working. This decision also applied to the 10 workers who had not yet returned to work but who were on the company's recall list. The union appealed the decision, and the board of referees unanimously allowed the claimants' appeal on July 18, 2008.

The problem arose when the Employment Insurance Commission subsequently appealed the decision. The case was to be heard on October 10, 2008, but, while preparing the workers' defence, the union lawyer realized that the cassette recording was inaudible and even that there was nothing on the B side of the cassette.

Furthermore, the commission informed the umpire that it could provide only a partial transcript. Consequently, the umpire asked for a new hearing with the board of referees to restart the whole process. The hearing took place on April 21, 2009. A request for a new hearing was made to the umpire. Then, without giving a reason, the commission told the umpire that it was withdrawing its action.

In the context of the appeals, what is most frustrating and most disappointing for the workers is when the board appeals when a decision is unanimous and well substantiated. It used its discretionary authority to appeal, whereas the workers involved in the dispute had between 15 and 20 years' experience.

These workers are the ones paying for these decisions. They are without any benefits and have been financially hurt by the commission’s decision to interfere with the labour dispute by challenging the board of referees’ unanimous decision and requiring the workers’ representative to return before the board of referees due to obsolete and faulty equipment.

The second case was a back-to-work case. On October 9, 2009, a strike began at the Olymel plant in Saint-Hyacinthe. The dispute ended on December 18, 2009 and the return to work was to take place on December 21, 2009.

When production resumed, obviously not all employees returned to work. Those not working went to Service Canada to complete an employment insurance application. They were surprised to learn that, according to section 53(1) of the regulations and section 36 of the Employment Insurance Act, which concerns labour disputes, they were not eligible.

More than 30 workers were thus deprived of employment insurance benefits. In this case, when they learned of the situation, both the union and the employer decided to challenge the decision before the board of referees. Service Canada has a somewhat esoteric interpretation of what constitutes the end of a labour dispute. For that agency, a labour dispute ends when 85% of workers have returned to work. I don't know who set that standard, but it has nothing to do with the end of a labour dispute.

As a result, the union and the employer challenged the decision before the board of referees. On September 28, 2010, the board of referees unanimously allowed the union and the company’s appeal, which set January 25, 2010 as the official date for the return to work, in accordance with the criteria of the Act. On October 15 following, the commission filed an appeal with the umpire. In early January 2011, the commission withdrew its appeal.

What is debatable about this case is that regulations were made for the application of section 36 regarding labour disputes. However, what is even more debatable is the discretionary authority of the commission, which in both cases, despite a unanimous decision by the board of referees and well substantiated decisions rendered by lawyers specialized in employment insurance, decided first to challenge the decision and, second, to withdraw the challenge.

But what compensation is there for the workers? What compensation is there for those who came to defend themselves? There is none. The commission alone decides arbitrarily what it has to do in this type of case.

There are costs associated with this kind of research: there are costs to the union and even costs to the Employment Insurance Commission. It abuses its rights by appealing to the umpire and subsequently withdrawing its appeal. These are costs that could be avoided and the amounts of which could be allocated to their rightful owners, that is to say the workers.

To complete my remarks, I will say that the commission could adopt the philosophy of one umpire, who drew on a Supreme Court judgement in CUB 61301. He held:

Since the Act is intended to provide the unemployed with benefits, it is justifiable to give a liberal interpretation of provisions pertaining to the re-eligibility for benefits, seeing that the Act was not designed to take away benefits it extends to the innocent victims of a labour dispute and that the employees contribute to the unemployment insurance fund.

And in the second case, the one in Saint-Hyacinthe—

[The Chair, Conservative, Candice Bergen]

I'm sorry. You have less than one minute.

[Bertrand Desrosiers]

All right. In both of the cases I have discussed, unanimous decisions were rendered by three members of the board of referees. The commission interfered in the process without being accountable to anyone.

It appeals decisions and subsequently withdraws its appeals. We want this abuse by the commission to cease because it is the workers who must bear the costs of that practice.

[The Chair, Conservative, Candice Bergen]

Thank you very much.

We'll now go to Mr. Martin for seven minutes, please.

Could you please let us know which organization you're from?

[Guy Martin, Coordinator, Legal Department, Confédération des syndicats nationaux (CSN)]

Good morning. My name is Guy Martin, and I am coordinator of the CSN's legal department.

First let's talk about the issue of procedure and rules of practice before the Employment Insurance Board of Referees. We have no criticism to make of the procedure as it is established by law or its application in general. Our criticisms focus mainly on administrative practices, of both the staff of the boards of referees and the commission itself, relating to appeals pending before the board of referees.

Subsection 78(2) of the Employment Insurance Act provides that no member of the board of referees may sit in conflict of interest in the case he or she is required to hear. We do not question this. However, the appeal cases before the board of referees are often assigned to board members on the morning of the hearing. Consequently, people who have a connection find out at that time that they cannot sit to hear the case. It may be an employer representative who has a relationship with the employer, or vice versa. Consequently, one of the members cannot sit. In those cases, as the act provides that a board of referees is validly constituted where the chair of the board is present along with one of the members of the board, the claimant is asked whether he or she agrees to proceed before only two members of the board rather than three.

The problem is relatively simple in the big regions where there are a number of boards of referees. Postponement in those cases has no impact on claimants since they can easily be summoned again the following week or the week after that. However, in more remote regions, where there are few members on the boards of referees, this may result in a hearing postponement of several days, several weeks or indeed several months. Significant prejudice can then be caused to claimants wishing to be heard.

Given this choice, which is not really a choice, people often agree to proceed before two board members, which may have quite a significant impact on the decision. Board decisions are rendered by three members. In some cases, a dissenting opinion can be rendered in an appeal case. Often the dissenting view, where there is one, is more substantiated, more supported by evidence and analysis of the docket than the decision itself. Consequently, when claimants are deprived of that opportunity, this may undermine their right to potential benefits where there is dissent on the board of referees.

Measures should be taken to ensure that boards systematically consist of three members. Ideally, they should be assigned earlier to enable members to determine whether they can or cannot proceed in a case and to ensure that other board members can subsequently sit if one of the three members is in conflict of interest. The member in conflict of interest can then be replaced by another. We believe this would be one way of making the process before the board more effective.

The second component concerns the representation of appellants before the board of referees. People may be represented by a lawyer or by a representative who is not a lawyer. In any case, very competent people who are not lawyers represent appellants before the board. However, a problem arises with regard to the respect that is shown by the commission or those surrounding the board of referees' staff.

In some cases, it would preferable to communicate with the designated representative, or the lawyer assigned to the case, before setting the date. That would be quite effective, since it would prevent a number of needless postponements. If there had been communication, the hearing could perhaps have been held one day earlier or one day later, but it would at least have been held. That would be one way to make matters more effective.

In some instances, the hearing is held despite a request for postponement by counsel sent to the board of referees by fax. The board sees that the claimant is not present and renders the decision. This requires everyone to go before the umpire, even if the request for postponement is pending. Once the decision is rendered, it cannot be touched until an appeal is filed with the umpire. The parties then go before the umpire and then back before the board a number of months later because they have not been heard. Ultimately, the outcome of the case is delayed by several months.

Similarly, it occurs that the commission or the clerk of the board of referees contacts the claimant directly without communicating with the claimant's representative or counsel. In our view, this behaviour is unacceptable. There should be no communication without first contacting the person representing an individual.

In one quite revealing example, as a result of an error in the handling of his case, one worker was assessed an overpayment in the context of the closing of a paper mill. The overpayment resulted from an initial bad decision by the commission. The worker's case was awaiting hearing and a lawyer had appeared concerning the matter. An officer of the commission contacted the employee and, unknown to the lawyer, put pressure on him to withdraw his appeal to the board of referees, saying that, if he withdrew the appeal, the amount of the overpayment that he would have to repay would be reduced and everything would be fine. The lawyer then tried to have the matter set down for hearing before the board of referees and learned that the person he was representing had withdrawn. It's incredible.

Two points concerning the communication of appeal dockets and the lack of resources. Appeal dockets are often forwarded to the lawyer one or two days in advance, which makes no sense. This should be done at least one week before the hearing.

In addition, there's often a shortage of resources in certain regions where the people at the board of referees, the clerks, work part time and work in a number of offices. So they share their time. A request for postponement, for example, from a lawyer or representative is consequently left in a voice mail box or sent by fax, but there is no acknowledgement of receipt or any follow-up. This obviously poses a problem. As a result, people may not know exactly what will be happening before the morning of the hearing.

[The Chair, Conservative, Candice Bergen]

Thank you very much, Mr. Martin.

I know you have a little more to present, so I hope you will be able to complete your presentation during questions and answers.

Monsieur Labarre and Madame Gendron are from the same group.

Madame Gendron.

[Catherine Gendron, Coordinator, Mouvement Action-Chômage de Trois-Rivières]

We are the Mouvement Action-Chômage the Trois-Rivières, a group representing not only the unemployed workers of Trois-Rivières, but also those of the greater Mauricie region.

Our testimony today will focus on our own observations. Mr. Labarre has been a representative before the board of referees for 20 years. In my case, I've been in the field for six years.

We were looking at the process for appointing board of referees chairs, which we believe is particularly unclear. In fact, it would be interesting to examine the selection criteria and also to see the criteria for determining whether or not their terms are renewed. In fact, we have questions about the current process and wonder whether political interference plays a role in this regard.

[The Chair, Conservative, Candice Bergen]

I'm sorry.

Mr. Komarnicki, on a point of order?

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

The member is trying to give evidence on the selection process, as I hear it, of umpires or board members. This study is related to the study of the procedures and practices for appealing a decision, not with appointments, so I think it's inappropriate to get into that area. If she wants to talk about practices and procedures relating to the appeal, that's fine; it's the process of what's involved in hearing the appeal, what's involved in getting the appeal done. As the previous two witnesses testified, they dealt with the issues relating to that.

As I hear her, she is starting to talk about appointments and who is sitting on there. That is not the issue we're studying. That could be an issue at another hearing, but not here, so I make the point of order that the witness should steer clear of that and go to what we're studying.

[The Chair, Conservative, Candice Bergen]

Thank you for that intervention.

What we are studying is fairly narrow in scope, so I would just ask you, Madame Gendron, if you could, with as much as you have prepared, to stay within the scope of the actual procedures and practices of the EI board.

Thank you very much.

[Catherine Gendron]

For example, we can talk about appeal dockets, which are part of the process itself. We have observed a lack of neutrality. In fact, we see that claimants are often hurt by the manner in which the docket is prepared. There is already a prejudice in favour of the commission before a claimant even appears before the board of referees. We find that the board should be as neutral as possible so that claimants can really present their viewpoints. In fact, the board of referees should not already be prejudiced in favour of the commission before a witness is even heard.

Over the years, we have also realized that chairs and members of the board of referees have tried to make the process much more formal than it should be. It is supposed to be less official in nature so that people are comfortable giving their testimony.

In a number of cases, we've seen that members wanted proceedings to be conducted as in a court house and to be something very official. For example, in one misconduct case, an individual who was testifying, providing his version of the facts and describing his employer's comments, used swear words, but that was really what the employer had told him. However, the chair interrupted the individual to say that swear words could not be used before the board of referees. In one sense, what the chair in fact wanted was for that person to change his version of the facts, which, in our view vastly skews individuals' testimony and version of the facts. And that is obviously taken into account in the decision.

We therefore want the board of referees to return to its original mandate and not to become formal so that people really feel comfortable there. Claimants are often under considerable stress before they appear, even when they are being represented. They therefore do not know what to expect, even if an attempt is made to explain to them what is happening.

Over the years, we have also seen that the case law we submit to boards of referees is not considered. It is simply disregarded because the board states that that is part of our argument. The case law cited is obviously in the claimant's favour. We believe this should not be done. All the case law submitted should be considered because it is on the basis of that case law that the decisions are rendered.

In addition, evidence such as medical certificates, letters and the testimony of individuals who cannot appear even if sworn in is at times set aside because it is ruled to be immaterial. We wonder why some members of the board of referees do not take note of this evidence and enter it in the docket. This evidence is simply set aside. We wonder whether the idea is not simply to shorten the board sitting as much as possible, as they have a very large volume of cases to hear in a day, or to catch up on the backlog of hearings that have previously taken more time.

We have also noted signs of impatience in certain board members when testimony goes on too long, even though it concerns relevant testimony about relevant issues. Board members do not want sessions to go on too long. However, decisions are based on testimony and case law. All this puts pressure on people. Witnesses often are unable to give their entire version of the facts. The facts are thus summarized, which will obviously have a very significant impact on the decisions rendered.

In closing, I am going to focus my remarks back on the board of referees and appeals. When we meet the people we defend, they often find it curious that the hearings are held right in the offices of Service Canada. In their opinion, it's as though the board of referees had already sided with the commission because they feel this is not a neutral location. They wonder whether the members of the board of referees work for the commission or are really from the commission. What we tell them is that they are neutral, impartial and objective. Perhaps some consideration should be given to the possibility of holding hearings in a more neutral locations to ensure objectivity and impartiality for claimants.

[The Chair, Conservative, Candice Bergen]

Thank you very much for those presentations.

We'll begin our round of questions. Instead of a seven-minute round, I think we'll have a six-minute round, because probably that's all we'll have time for.

I'll remind the witnesses that the questions and answers are included in that time allotment, so if you're going over, I will have to let you know just so that every member can have a chance.

We'll begin with the Liberals.

Mr. Savage, you have six minutes, please.

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

Thank you, Chair.

Thank you all very much for being here with us today to look at this issue. I appreciate your testimony.

I want to begin with Madame Gendron and Monsieur Labarre.

As I understand it, your organization sort of works with and provides counsel for people who are recently or perhaps not so recently unemployed. Is that what you are? You're a community organization that works with the unemployed.

[Catherine Gendron]

Our group sees certain people before they are unemployed and gives them preventive information. We also help them when they are unemployed. We inform them and we supervise them. We also appear with them before the board of referees.

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

Obviously you work with people who are unemployed, so a lot of these people.... But you provide support for people. I guess Mr. Labarre provides support for people who are going before a board of referees.

[Catherine Gendron]

We explain to them how the board of referees operates. We accompany them and help them put their case before the board of referees and the umpire.

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

Do you keep statistics on how many of your visits with the board of referees are successful? How often are you successful with the board of referees when you appeal a claim?

[Catherine Gendron]

We've noted all that year after year. I can send you the figures, if you wish.

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

Could you give me a sense of what the numbers are? Approximately how often is somebody successful?

[Réal Labarre, Advisor, Mouvement Action-Chômage de Trois-Rivières]

That depends on the years. On average, I would say that our success rate is between 85% and 93% before the board of referees.

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

That's a pretty high statistic, so congratulations to you.

[Some hon. members]

Oh, oh!

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

I don't know how this works in the rest of the country.