Archived – Digest of Benefit Entitlement Principles Chapter 8 - Section 1

8.1.0 Authority

The legislative provisions relating to labour disputes confirm Parliament's concern for neutrality in the administration of public funds composed mainly of premiums paid by the two parties – employer and claimant – traditionally involved in labour disputes, and whose interests quite clearly diverge ^{Footnote 1} .

A disentitlement is imposed in the following situation ^{Footnote 2} :

Subject to the regulations, if a claimant loses an employment, or is unable to resume an employment, because of a work stoppage attributable to a labour dispute at the factory, workshop or other premises at which the claimant was employed, the claimant is not entitled to receive benefit until the earlier of

1. the end of the work stoppage, and
2. the day on which the claimant becomes regularly engaged elsewhere in insurable employment.

It is further specified in the legislative text that ^{Footnote 3} :

The Commission may . . . make regulations for determining the number of days of disentitlement in a week of a claimant who loses a part-time employment or is unable to resume a part-time employment because of the reason mentioned in subsection (1).

The intention here is to disentitle a claimant only to the extent of the part-time employment that he or she has lost or cannot resume because of a labour dispute. The number of days of disentitlement in a week may be less than five ^{Footnote 4} .

Furthermore, under certain conditions, the disentitlement may be suspended when the claimant proves that he or she is otherwise entitled to benefit for some types of benefits ^{Footnote 5} .

However, the disentitling provisions will not apply if the claimant proves ^{Footnote 6} :

the claimant is not participating in, financing or directly interested in the labour dispute that caused the stoppage of work.

8.1.1 Purpose

The employment insurance account from which benefits are paid consists of amounts deducted as premiums from the incomes of employees ^{Footnote 7} and from premiums paid by employers ^{Footnote 8} . In labour disputes, the interests of these two groups of contributors are usually divergent and in such a context there can be no question of the account's revenues being used to benefit either party ^{Footnote 9} .

As an expression of its firm desire to prevent the Employment Insurance Act from having any influence whatsoever on labour-management relations, Parliament has imposed strict rules ^{Footnote 10} to prevent employment insurance being used to support either party to a labour dispute.

Moreover, the scheme was never intended to extend to loss of employment due to participation in such disputes, irrespective of which party is right or wrong ^{Footnote 11} . The issue is not one of equity; the ruling on entitlement in such circumstances is not based on fault or merit ^{Footnote 12} . The Commission must demonstrate an ongoing impartiality at every step leading to the decision it must make on such questions, and eschew any judgement or interference in the dispute.

Even though a refusal of benefits to claimants may be of a major assistance to an employer in resolving a dispute in favour of the latter, this approach does not contravene Parliament's concern for neutrality ^{Footnote 13} .

It should rather be viewed in the context that the payment of benefits to employees involved in a strike could tip the balance in the negotiations that have reached an impasse ^{Footnote 14} .

8.1.2 Scope

The Act's provisions relating to labour disputes are not discriminatory and in no way contravene the principles set forth in the Canadian Human Rights Act ^{Footnote 15} . They apply equally to all claimants without exception, including those employed in job creation partnerships ^{Footnote 16} or under work sharing agreements ^{Footnote 17} . Special rules apply, however, to reflect the specific character of the fishing industry ^{Footnote 18} .

With respect to entitlement, there is no question of these provisions taking precedence over other sections of the Act; moreover, there is no specific mention in the statute to suggest this ^{Footnote 19} . It would be more correct to state that all provisions dealing with entitlement to benefit ^{Footnote 20} coexist in such a way that, for a given period, an individual who meets the requirements under a specific section of the Act may not receive benefit when the requirements under another section cannot be met for the same period. A person who has been disentitled under the labour dispute provisions may be otherwise entitled to benefits by reason of pregnancy, caring for a new-born or a child placed for the purpose of adoption, illness, injury or quarantine, attending a course or employment activity as directed by a designated authority provided the conditions that permit the suspension of the disentitlement at issue ^{Footnote 21} applies.

The protection provided in the Act with respect to the right of union association does not apply when the loss of employment results from a stoppage of work attributable to a labour dispute ^{Footnote 22} .

The labour dispute provisions do not hinder the right of employees to strike or, nor does the fact that disentitlement continues after settlement of the dispute encroach the freedom of association provided in the Canadian Bill of Rights and in the Canadian Charter of Rights and Freedoms ^{Footnote 23} . The right of a union to strike is not protected by the freedom of association of its members and the consequence of exercising this right does not infringe this freedom. The same can be said for the consequences of an employer exercising the legal right to resort to a lock-out ^{Footnote 24} .

The rule laid down in the labour dispute provisions is neither fundamentally unjust nor unreasonable and does not contravene the Charter. Moreover, the particular scheme set up in the Act contemplates that a constitutional question should more appropriately be presented to the Umpire, on appeal, rather than to the Board of Referees itself ^{Footnote 25} .

Moreover, it must be known that the values embodied in the Charter, as those related to freedom of association, must be given preference over an interpretation of the law which would run contrary to them ^{Footnote 26} .

8.1.3 Prerequisites

The legislative provisions dealing with labour disputes ^{Footnote 27} are specifically addressed to the claimant:

1. who has lost an employment or is unable to resume an employment
2. because of a stoppage of work
3. attributable to a labour dispute
4. at the factory, workshop or other premises at which he or she worked.

This is not a chance grouping of elements; rather, these four elements are a prerequisite for application of the provisions ^{Footnote 28} . The first major element in this context is without doubt the existence of a labour dispute ^{Footnote 29} ; this dispute must take place in a particular setting namely the claimant's place of employment ^{Footnote 30} . The structure of the labour dispute clause also establishes an essential cause-and-effect relationship between the employment that was lost or cannot be resumed, the stoppage of work and the labour dispute. Thus it is fundamental that the claimant has lost employment or is unable to resume an employment and the occurrence of one or the other is attributable to a stoppage of work caused by the dispute.

The absence of any one of these four elements is all that is required for the labour dispute provisions not to apply in a given case. In such instances, there is no need to consider the exempting conditions ^{Footnote 31} .

8.1.4 Exempting conditions

Even if, in a given situation, the four elements of disentitlement were present, the claimant could still avoid the scope of these provisions if the claimant proves that he or she is ^{Footnote 32} :

1. not participating in the labour dispute,
2. not financing it, and
3. has no direct interest in it.

These conditions are conjunctive, in the sense that each must be respected at all times for the whole to apply. If all of them are not observed throughout the work stoppage, the claimant is subject to disentitlement under the labour dispute provisions.

Where this is in fact the case, the next step is to determine the commencement of the period of disentitlement.

8.1.5 Commencement of the period of disentitlement

Depending on a claimant's particular situation, the period of disentitlement for benefits begins at the most recent of the following dates ^{Footnote 33} :

1. the day on which the claimant lost an employment or is unable to resume an employment because of a stoppage of work attributable to a labour dispute;
2. the Sunday of the week in which the claim for benefits is effective ^{Footnote 34} ;
3. in some exceptional cases, the first day on which the claimant no longer meets at least one of the exempting conditions ^{Footnote 35} .

8.1.6 Disentitlement for days in a week

Once the period of disentitlement is established, it will continue for each working day in a week of unemployment until the fulfillment of the conditions permitting its suspension ^{Footnote 36} or its non-application ^{Footnote 37} or one or the other of the two situations provided in the legislative text for its termination ^{Footnote 38} occurs. The number of days of disentitlement in a week may be less than five in the case of a claimant who has lost part-time employment or who is unable to resume this employment because of a stoppage of work attributable to a labour dispute ^{Footnote 39} . These situations are discussed in separate headings ^{Footnote 40} .

8.1.7 Suspension of the period of disentitlement

A disentitlement that continues for one or more days a week will reduce the amount of benefits payable to a claimant in a week of unemployment.

The effect of a disentitlement on the payment of benefits obviously no longer exists when the disentitlement is terminated. That however is not the sole situation where the claimant may again receive the entire amount of benefit which is payable in respect of a week of unemployment. Another situation provides for the suspension of a disentitlement in the case of pregnancy, care for a newborn or a child placed for the purposes of adoption, illness, injury or quarantine, providing care or support to a family member who is critically ill or injured, has a serious medical condition with significant risk of death within 26 weeks or attending a training course to which one was directed by an authority designated by the Commission. The legislation provides that in that case ^{Footnote 41} :

a disentitlement under this section is suspended during any period for which the claimant

1. establishes that the claimant is otherwise entitled to special benefits or benefits by virtue of section 25: and
2. establishes, in such manner as the Commission may direct, that, before the work stoppage, the claimant had anticipated being absent from their employment because of any reason entitling them to those benefits and had begun making arrangements in relation to the absence.

These issues will be more fully discussed under other headings ^{Footnote 42} .

[ October 2006 ]

8.1.8 Termination of the period of disentitlement

The legislation specifies that a claimant who has lost employment or who is unable to resume an employment for the reasons stated is not entitled to benefit before the termination of the stoppage of work or before the day on which the claimant becomes regularly engaged elsewhere in insurable employment ^{Footnote 43} .

This does not rule out the possibility that disentitlement will subsequently become inoperative when the claimant successfully establishes that the exempting conditions are met ^{Footnote 44} .

There may also be other factors that lead to the termination of the period of disentitlement ^{Footnote 45} .

8.1.9 Proof

Case law on proof of entitlement to benefits holds that the Commission bears the onus of proof particularly with respect to the presence of the four elements of the labour dispute provisions ^{Footnote 46} . The majority view holds that the Commission shows there has been a loss of employment by reason of a stoppage of work attributable to a labour dispute at the claimant's place of employment. Today, in the more recent jurisprudence, we find the same views are held ^{Footnote 47} .

This assertion ought to find support in the Act. This, however, is not the case; nowhere does the labour dispute clause state that the Commission has any onus of proof whatsoever.

Who then bears the onus of proof? A Federal Court judgment ^{Footnote 48} has cast new light on a quite explicit subsection of the Employment Insurance Act ^{Footnote 49} , one that previous decisions appear to have relegated to obscurity.

The statute clearly states that the claimant must in all cases demonstrate entitlement to benefits. This position is quite consistent with the views of the Commission. The Commission has often, and quite wrongly, been relegated to the role of a Crown prosecutor, whose only function would be to accumulate evidence against the claimant.

Rather, the Commission's responsibility is similar to that of a cautious administrator, whose principal concern is to ensure sound management of the employment insurance program, and to rule on entitlement of the claimant to benefits. In order to fulfill its mandate, the Commission must remain neutral and objective toward those who pay premiums; how then can it possibly bear the onus of proof?

The claimant must bear the onus of proof of entitlement to benefits; the specific context of labour disputes is no exception to this rule. Consequently, the claimant must show that his or her case is not subject to the legislative provisions relating to labour disputes ^{Footnote 50} , that these cannot apply given his or her specific situation ^{Footnote 51} or that they no longer affect his or her entitlement. This is the same concerning the entitlement to benefit and the conditions to fulfill for the suspension of the disentitlement ^{Footnote 52} .

In this context, the Commission is responsible for assembling all relevant information on the subject, whether favourable or unfavourable to one party or the other; actual facts are to be examined, and not the interpretation given them by the interested parties.

The Commission must then weigh the evidence to rule on the claimant's entitlement to benefits. It must consider not only the four elements that result in disentitlement to benefits, but the exempting conditions for these provisions. The same rule applies for the suspension and the termination of the disentitlement.

The benefit of the doubt should not be given to the one, who must prove entitlement to benefits, in other words, the claimant.

8.1.10 Newspaper articles and press releases

Strictly speaking, newspaper articles are no more than a written form of hearsay. Such published information may in principle be considered ^{Footnote 53} but as with any other forms of information, its credibility must be assessed at the time the decision is actually made.

This assessment is especially important in the case of labour disputes; by their very nature, such disputes involve contradictory claims by the parties involved. As for newspaper reports, it must be borne in mind that journalists are vulnerable to distorted information originating from both sides of the dispute; they should not be accorded any importance unless their foundation and accuracy can be verified with both parties involved, employer and union.

Newspaper articles and press releases should be considered as useful indications of the nature of a dispute in that they focus on such features as the position of the parties concerned, sensational incidents of violence, termination of a stoppage of work, and so on.

Once these indications are available, the next step-one in keeping with a fundamental principle of natural justice-is to provide each party with an opportunity to clarify and comment on the situation.

One should not lose sight of the fact that the claimant bears the onus of proof to entitlement to benefits. For example, with respect to exempting conditions, claimants or their representatives are required to refute all unfavourable facts that appear in a news item or release ^{Footnote 54} .