February 27, 2006 Guy Duperreault Applicant EI Umpire 500-5050 Kingsway Burnaby BC V5H 4C2 Re.: Denial of EI Benefits – File #-915-154; Case# 05-1457 In my original letter of appeal I cited two sections of the charter that are put into jeopardy or even violated by the policies of the EI board. As a result of doing research for my appeal to the board of referees, I learned that my charter arguments were applied against a policy questionnaire that is itself an error in the administration of the EI Act 36(1). And I also learned that 36(1) of the EI Act is itself in violation of the Charter of Rights and Freedoms. Specifically 36(1) of the EI Act violates section 15(1) of the Charter. Furthermore, I argue that the section of the act that has denied me benefits, as it has been administered and justified by referees and umpires, is inherently flawed, and that those actions of the EI board and its agents also violates the Charter of Rights and Freedoms, specifically 2(a), 2(d) as noted in my original appeal, but now that I know this questionnaire is unnecessary, also section 12. There is an inequity in how 36(1) has been enforced over the years, and that hypocrisy impugns the integrity of blinkered enforcement of 36(1) and invalidates the reasons for my claim’s denial. The referees who dismissed my appeal did not err in law, but the law itself is in error. I also argue that the interpretation of 36(1) that I have read in the jurisprudence by the board and its agents is morally and legally incorrect. These justifications may have arisen from a psychological and/or emotional need within the members of the EI boards and agents to try to justify what is known to be an unfair law because, as it stands, 36(1) requires no justification to deny claims to labourers embroiled in a labour dispute. Given that 36(1) requires no justification in denying claims, it is puzzling that most boards, referees and umpires who have ruled on 36(1) have verbosely justified it. Although there is at least one exception to that. After I conclude my general arguments, I show how these failures relate to me, specifically, in the dispute my employer put upon me. Note: I will have informed the various Attorney-Generals of this appeal, as is

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required by article 57 of the Federal Courts Act, when a date is set for the hearing of my appeal. 36(1) of the EI Act violates section 15(1) of the Charter of Rights and Freedoms, in that it discriminates against a distinguishable class or group in society: the labourer, in favour of another distinguishable class or group, the employer. Furthermore, the discrimination is not designed to ameliorate the situation of a disadvantaged group, so 15(2) does not apply to validate the discrimination. Functionally it exacerbates the discrimination by shifting the inequality extant between the labourer and the employer further in favour of the employer than already exists. 36(1) Reads: 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 benefits until the earlier of

(a) the end of the work stoppage, and (b) the day on which the claimant becomes regularly engaged

elsewhere in insurable employment. What is a labour dispute? An employer, willingly or less willingly, suffers work not getting done, and any/all financial and contractual consequences to achieve perceived economic and/or financial objectives, while the employees, willingly or less willingly, suffer through reduced income, with all its financial and contractual consequences, to achieve perceived socio- and/or personal economic and work environment objectives. All things being equal, each party will recognize the "market" reality of their positions and eventually sign a collective labour agreement with which each party can live – and, ideally, thrive. The issue of "all things being equal" is, ostensibly, at the heart of the oft repeated cry that EI is to remain neutral in a labour dispute. For example:

It has been stated in considerable of the jurisprudence that this section (Section 36(1), formerly Section 31 and formerly Section 41 of the Act) is based on the proposition that government neutrality should be preserved in a labour dispute. This is stated by the Court in Caron v. Richard et al. CUB 14267 where Hugessen and Desjardins, J.J. quoted L'Heureux-Dubé, J. in Hills, [1988] 1 at 537:

"The two principles generally invoked in the interpretation of s 44 rest on the proposition that government neutrality should

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be preserved in a labour dispute and that it would be inequitable for an employer's contribution to the Unemployment Insurance fund to finance a strike against himself. Hickling [M. A. Hickling, Labour Disputes and Employment Insurance Benefits in Canada and England (1975)], at p 1, puts it as follows:

The neutrality of the state is to be preserved, and funds to which employers are compelled to contribute are not to be used against them." [My emphasis.]

It is worth noting that the OED Shorter Dictionary defines inequitable as "Not equitable, unfair." And from the Jurisprudence Index on Labour Disputes:

As an expression of its firm desire to prevent the EIA from having any influence whatsoever on labour-management relations, Parliament has imposed strict rules to prevent employment insurance being used to support either party to a labour dispute. This jurisprudence is essential in defining a labour, when it begins and ends, and clarifying the relationships between the various parties to each other [my emphasis].

These, and many other similar citations and cases, provide evidence of the aetiological nature of the enforcement of the act – it is a law which has in its case-law the intent or constriction of neutrality and fairness in a labour dispute with respect to, ostensibly, both parties in the dispute. And, as with most things in life, the measure and vitality of an intent is in how it is made manifest through the actions and their associated consequences by those entities that hold the power to see that intent made manifest in tangible, pragmatic ways. The language of the intent is lucid and succinct. I repeat, with changed emphasis: As an expression of its firm desire to prevent the EIA from

having any influence whatsoever on labour-management relations, Parliament has imposed strict rules to prevent employment insurance being used to support either party to a labour dispute [my emphasis].

The questions that come to mind are: Is Parliament’s intent of fairness made manifest in the consequences of the actions taken by the EI board and its agents to ensure that fairness? Is the EI board's strivings for neutrality supported by their actions, despite their incessant reliance that their ONLY proof of neutrality is to enforce denial of benefits? And do the board’s actions correspond with the law of the land, both within the EI Act and within

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the Charter of Rights and Freedoms? I begin the discussion on EI's neutrality by elaborating that the purpose of government/EI neutrality is, to quote the decision above, to ensure that the "funds to which employers are compelled to contribute are not to be used against them." A slight reading between the lines infers that EI is to help provide a neutral and fair financial "playground" for the disputants. All things being equal. And that “equality” is to be assumed extant, despite the employee not being named as one who also is compelled to make EI contributions. And to that end I turn to the concern cited within many of the denied appeals relating to employers financing strikers via their compulsory EI contributions, if these strikers were to receive EI payments whose benefits have been paid for by their erstwhile employer. This overlooks the fact that the employee also contributes to EI. And thus the frequent citation that an employer's compulsory payments are not to be used against them is not neutral: it is an inequity because the employees who have contributed to EI are being denied all insurance owed them – and not just the part paid for by the employer. That has all the earmarks of a built in unfairness. But, despite that, it is not unreasonable to see some kind of fairness in this because it can be seen to be unfair to the employer if, in their planning of an extended “break-the-employer” kind of strike, the employees were able to count on the EI benefits as a secondary strike fund. It is important to note that this scenario of “fairness” differentiates the employer from the employee, and requires a reading in of intent on the part of the employee in the planning of an extended dispute. What if the intent of the employee wasn’t a protracted dispute, but that the strike had been engineered by the employer in its bid to “break the union”? Blind administration of “fairness” would, in this instance, be of a questionable kind. Now, what about the scenario in which an employer plans for and enacts a “break the union” kind of lockout? Does the case law admit that in this scenario, the compulsory contributions of the employee made before the lockout are an unfair financial cost that helps the employer in its lockout? No. It does not. In fact I have not read any jurisprudence referring to the employee's contributions. And that is unfair, because, if we follow the financial argument as it relates to employers, the employees contributions to EI amount to the employees helping destitute themselves because the employee is denied even access to the base contributions s/he made before the labour dispute – with or without interest – let alone any type of reasonable insurance benefit based on his or her contributions!

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I extend this argument further: an employer actually receives, relative to the employee, an unfair financial benefit from a labour dispute in the form of reduced expenses. How so? Because the employees' expenses remain relatively fixed during a labour dispute – despite the removal of EI and CPP fees – while in the aggregate for an employer the removal of these may not be all that significant in comparison to their reduced payroll costs. In other words, not only has an employer lost the huge expense of bankrolling payroll paycheques and EI contributions, but for a time the employer's revenues may remain relatively unaffected. Concomitantly the employees' expenses have often or usually remained almost exactly the same, and their income has been severely curtailed if not stopped completely. Fairness and neutrality are not the descriptions that describe an employee’s denial of benefits in this scenario. I am not the first to have raised the issue of how fair has been the effort of the EI Board towards achieving neutrality. The issue of "fairness" has been addressed in the jurisprudence. For example, from the FCA Docket A-90-81, October 28, 1981, ATTORNEY GENERAL OF CANADA applicant, and GARY SCHOEN respondent, regarding CUB 6384,:

There is perhaps another way to explain the umpire's decision. While he did not say so, he may have read subsection 44(l) as disentitling a claimant from receiving only the benefits o[r] the portion of the benefits that, if the subsection did not exist, would become payable as a result of the loss of employment attributable to a labour dispute. In other words, according to that interpretation, the subsection would not disentitle a claimant, whose employment is terminated by a labour dispute, from receiving the benefits to which he would have been entitled if that employment had not been terminated; it would merely disentitle him from receiving additional benefits as a consequence of the termination of his employment by reason of a labour dispute. That interpretation would certainly produce fair results. I have nevertheless reached the conclusion that it must be rejected. Under the Act, when a person is, by reason of section 44, disentitled from receiving benefits for a day or a period, that person thereby loses his right to receive any benefit for that day or period. This, in my view, flows from paragraph 16(1)(a) and subsection 27(2) 2 . It follows that:, in my opinion, subsection 44(1) cannot be interpreted so as to disentitle a claimant of only a part of the benefits that he would otherwise have the right to receive. [My Emphasis.]

Fairness is here explicitly excluded! And yet, in case after case after case, fairness is cited as a reason to exclude benefits because it would be unfair to an employer. It is okay for the law to be unfair to the employee, but not the employer.

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By this judgement Judge Pratte belies even the pretext of neutrality in the law’s enactment, and clearly establishes the context of unfair discrimination: the enforcement of 36(1) is blatantly unfair, and all decisions that use fairness case law are subject to Charter arguments and “fairness” scrutiny. Is the aetiology of the act and the purpose of board to ensure neutrality and fairness between disputants or to assist employers in the disenfranchisement of labour? If you decide that the aetiology of the act is strictly to be fair to the employer and to that end assist the employer its subjugation of labour, then I suggest that the Board stop the hypocritical citations referring to fairness. If, on the other hand, the aetiology of the act is to make manifest a neutral and fair playground for the owners of labour and the labourers themselves, so that each may participate in a democratic society as socio-economic equals in fair market haggling, then I suggest that boards such as this one do not pretend that ignoring the circumstances of individual cases is being fair. Neutrality does not arise from dispassionate blinkered adherence to some organized letters that comprise a statute. To remain neutral between two opposed parties requires understanding of the nature of both parties before neutrality can be considered, let alone achieved. Neutrality is not achieved by the blind enforcement of deaf words. Such behaviour is antithetical to a democracy because blinkered enforcement of any law subjugates the citizens hurt by that law to the state and belies that citizen being a participating member of a free democracy. Justice Wilson says this powerfully in R. v. Morgentaler (1988) 1 S.C.R. 30 [p.178]:

As is pointed out by Professor Cyril E. M. Joad, then Head of the Department of Philosophy and Psychology at Birkbeck College, University of London, in Guide to the Philosophy of Morals and Politics (1938), the role of the state in a democracy is to establish the background conditions under which individual citizens may pursue the ethical values which in their view underlie the good life. He states at p. 801:

For the welfare of the state is nothing apart from the good of the citizens who compose it. It is no doubt true that a State whose citizens are compelled to go right is more efficient than one whose citizens are free to go wrong. But what then? To sacrifice freedom in the interests of efficiency, is to sacrifice what confers upon human beings their humanity. It is no doubt easy to govern a flock of sheep; but there is no credit in the governing, and, if the sheep were born as men, no virtue in the sheep.

Professor Joad further emphasizes at p. 803 that individuals in a democratic society can never be treated "merely as means to ends beyond themselves" because:

To the right of the individual to be treated as an end, which entails

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his right to the full development and expression of his personality, all other rights and claims must, the democrat holds, be subordinated. I do not know how this principle is to be defended any more than I can frame a defence for the principles of democracy and liberty.

Professor Joad stresses that the essence of a democracy is its recognition of the fact that the state is made for man and not man for the state (p. 805) [my emphasis].

By blindly following a law which has even been deemed unfair by not just Louis Pratte, the federal court judge who wrote the Schoen decision, but by the two other judges who participated in that decision – John Urie and D.J. Verchere – the enforcement of 36(1) of the EI Act violates the principle that “the state is made for man and not man for the state.” In enforcing an unfair law, man – in this case the labourer – is subjugated to the state and its agents. Specifically, by blindly enforcing 36(1) in a lockout, EI is a tool assisting the impoverishment of labour as a means to an end beyond the individual labourer, that being the model of labour management fashionable within today’s flavour-of-the-day corporatist ideology. If the labourer sees as one of its goals the collective well being of society via a respected and reasonably paid labour force, any action on the part of the state, even through the EI board, to hurt that is a violation of the principles of a democratic society as stated by Joad, and a violation of 15(1) of the charter. I feel that Joad’s statement deserves repeating:

For the welfare of the state is nothing apart from the good of the citizens who compose it. It is no doubt true that a State whose citizens are compelled to go right is more efficient than one whose citizens are free to go wrong. But what then? To sacrifice freedom in the interests of efficiency, is to sacrifice what confers upon human beings their humanity. It is no doubt easy to govern a flock of sheep; but there is no credit in the governing, and, if the sheep were born as men, no virtue in the sheep.

Judge Pratte, who explicitly expunged fairness as an argument against denial of benefits, was at least being honest to 36(1), unlike the jurisprudence that has invariably denied benefits to labour disputants as almost uniformly the method sine qua non, of being fair. Besides the blatantly stated unfairness of the FCA ruling that overturned the “fair” decision of CU6384 above, there is, for inexplicably unfair non-reasons, no distinction made by EI between workers locked out and those who have initiated a strike. In the argument that follows I honour the distinction, and extend the argument that EI neutrality is at least improbable when the distinction is ignored in general – but in the case of employers who take advantage of 94.2(1) of the Canadian Labour Code, which allows the use of replacement workers during a labour dispute, it is impossible, and

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any pretext at it being neutral is not just asinine, but antithetical to any reasonable principle of democracy. In pragmatic terms, the case law history of the blanket denial of EI benefits to a locked out labourer amounts to a benefit the employer can take advantage of in its planning for and management of a labour dispute – especially in a "break-the-union" kind of dispute for which the employer has taken great effort to plan and prepare. An employer with a knowledge of the EI Act and 36(1)'s jurisprudence may very well plan for an extended dispute with the full knowledge that its employees will be facing destitution and no assistance from EI. My argument has, in fact, some jurisprudence behind it. From DENNIS HILLS, "et al", – v. – ATTORNEY GENERAL OF CANADA (REFERENCE NO: CUB 8764; JUDGMENT NO: A-175-84); COURT FILE NO: 19094; DATE OF ISSUE; November 21, 1997 (March 24, 1988)):

a) Government Neutrality in a Labour Dispute In order to remain neutral the law should but does not distinguish between strikes and lockouts. The reasonableness of the claims and the merits of the dispute are ignored in the determination of the question whether the labour dispute actually exists. The government can hardly invoke neutrality if it declines to differentiate between a legitimate grievance leading to a lockout and a voluntary stoppage of work following a breakdown in industrial relations. It is indeed difficult to classify as neutral a refusal to pay benefits in the former situation (Terry Norris, "Dissociating from a Trade Dispute, and Claiming Unemployment Benefit" (l985), 135 New L.J. 967 at p. 967). As mentioned by Susan H. Ephron: "The neutrality principle can serve as a justification for the "labour dispute disqualification" only if the parties to the dispute stand on equal footing. In the majority instances they do not" (Susan H. Ephron, "Redefining Neutrality: Alternative Interpretations of the Labour Dispute Disqualification in Unemployment Compensation" (1986), 8 Comp. Lab. L. 89, at p. 104). If an employer insists upon unreasonable terms in the settlement of a labour dispute and the employees are aware of the fact that unemployment insurance benefits will not be paid if there is a stoppage of work due to lack of agreement, the employees may be induced to accept unfavourable terms of employment which they would not otherwise accept. Under such conditions the Act becomes an instrument of coercion (In re McKay (1946), 53 Man. R. 364, at pp. 372-73). A refusal to pay benefits in those circumstances is hardly a neutral stance. Likewise, to guarantee benefits only to those who do not pay union dues may deter workers from combining their economic strength, particularly if the payment of union dues is construed as financing the dispute (see Milton I. Shadur

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"Unemployment Benefits and the "Labour Dispute" Disqualification" (1950), 17 U.: Chi. L. Rev. 294, at pp. 296 to 298, Leonard Lesser, "Labour disputes and Unemployment Compensation" (1945), 55 Yale L.J. 167, Note, "Eligibility for Unemployment Benefits of Persons Involuntarily Unemployed Because of Labour Disputes" (1949) 49 Colum. L. Rev. 550). In the final analysis, while it might be desirable that the government remain neutral in a labour dispute, it is questionable whether the disqualification provision, applied to the circumstances of this case, would in fact achieve such a result. Absent proof, as here, that the claimant voluntarily chose unemployment in order to foster the strike, the neutrality principle does not seem to justify depriving such claimant of unemployment insurance benefits. b) Employer financing strike against himself It is also argued that the legislature cannot have intended that the employer, through his contribution to the unemployment compensation fund, finance a strike against himself. This argument does not take into account that such contributions will eventually be shifted by the employer to the consumer or to his or her employees. Such "financing" may not even materialize since strikes are often of lesser duration than the usual benefit-waiting period. Even if it did, the absence of benefits during the waiting period, combined with the prospect of benefits amounting to a fraction of normal wages, will rather dissuade labour unions from calling a strike than encourage them to do so (Shadur, supra, at p. 298). I do not think that it is necessary to belabour the point further. Suffice it to say that the rationale underlying s. 44 as it was originally enacted in England and later incorporated in its Canadian counterpart, does not today enjoy such favour in the United States or in Canada and no wonder, given the materially different state of labour relations [my emphasis].

From this judicial statement it is very clear that if employees find the thought of EI benefits not an enticement to strike – and I can certainly attest to that in my case – it is equally true that the lack of benefits is certainly a consideration in an employers' lockout plans, especially if the labour dispute is anticipated, expected and planned to be protracted, and the employer takes advantage of 94.2(1) of the Canadian Labour Code, which allows the use of replacement workers. This tangible, even measurable difference in attitude between "labour" and "employer" towards EI contributions/benefits belies equality and fairness between the disputants, and makes a mockery of the enforcement of 36(1) as a means of ensuring state neutrality. The denial of benefits, which is basically an act of inaction, clearly favours the

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employer and thus perverts the board’s intent of neutrality and fairness. That the employer clearly gets a benefit, supplies additional evidence of discrimination that can produce measurable disenfranchisement of the labourer and imbalanced benefit at the labourer’s expense for the employer. Clearly 36(1) of the EI Act is in violation of 15(1) of the charter, as well as the fundamental principles of a democracy requiring that all are equal before the law. Now, how does all that apply to me? I was locked out by TELUS. Is there evidence that TELUS is aware of labour and EI law by which they could make plans for a protracted lockout? Their having hired a bevy of lawyers certainly infers that they did, yes. There is no reason to suppose that TELUS hired those lawyers in order to remain ignorant of labour law in any and all of its aspects. At the very least as a responsible corporate entity, TELUS requires knowledge of EI in order to administer its accounts. Furthermore, as evidence of their legal preparations, TELUS took a very aggressive stance towards the use of 94.2(1) of the Canadian Labour Code – see evidence document #1. Is there evidence that TELUS was an employer who “insist[ed] upon unreasonable terms in the settlement of a labour dispute?” Yes. A perusal of the various CIRB rulings as they relate to the TWU/TELUS bargaining process will amply indicate this. I will cite from, for example, CIRB ruling RD0271:

[4] The TWU gave notice to bargain to TELUS on August 15, 2000, and filed their bargaining proposals on with a view to renewing the TWU agreement. Collective bargaining commenced on November 1, 2000. TELUS did not file bargaining proposals but issued statements of “issues and objectives” with a view to concluding an entirely new collective agreement. There have been two conciliation attempts, the latest of which commenced on November 14, 2003, and has now been concluded. Both attempts have been unsuccessful. After three years of negotiations, the parties have yet to conclude a collective agreement or sign off any collective agreement language. The only two issues on which the parties have been able to agree are a maintenance of services agreement and the conciliation process. [My emphasis.]

And: [127] The Board is dismayed that an experienced and sophisticated employer should seek to take advantage of a “very carefully crafted” undertaking given to the Board through its learned counsel, at public hearings, in order to devise other circumstances that avoid the strict wording of its undertaking. Such actions are contrary to effective industrial relations and sound labour-management relations promulgated by the Code in its Preamble. In the circumstances of this case, the employer’s actions have had the consequence of poisoning

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the collective bargaining process in which the parties are engaged and have effectively destroyed whatever remaining trust may have been necessary for the parties to voluntarily conclude a collective agreement. [My emphasis.]

And, from citation 2004 FCA 438, in which the Federal Court of Appeals dismissed with costs TELUS's appeal to the CIRB's dismissed appeal of CIRB Ruling RD278:

[72] The applicants provided no authority for the proposition that employee wishes had to be considered by the Board when determining whether there was a valid labour relations purpose for issuing a single employer declaration. [76] In my opinion, it was not patently unreasonable for the Board to conclude, on the basis of its jurisprudence and the facts before it, that the inclusion of the new employees would not involve such change. [83] Given these differences, it cannot be said that the 2004 Decision was patently unreasonable in applying the more relevant Board jurisprudence dealing with accretions to a bargaining unit. [84] For these reasons, I am not persuaded that the 2004 Decision so misinterpreted the Board's jurisprudence as to render it patently unreasonable for the Board to exercise its discretion under section 18.1 without first ascertaining the wishes of the new employees. [87] ... The complaint is unfounded in so far as it alleges that the 2004 Decision simply overlooked the fact that the 2001 Decision distinguished between employees hired as a result of TELUS' expansion of its existing operations, and employees of acquired companies. As I indicated earlier in these reasons (at [19]), when making its 2004 Decision the Board was very alive to this distinction: see, for example, paras. 186-88 and 313 of the reasons for the 2004 Decision. [106] In my view, there is no merit in these contentions. See also para.s [89], [90], [96], [98], [100], [105], and [112] For these reasons, I would dismiss the application for judicial review with costs.

Is there evidence that TELUS made extensive use of replacement workers to help it extend the lock out? I have provided a copy of the legal complaint that the TWU filed with the CIRB on September 9th, 2005. In it are detailed listings and proof of TELUS’s extensive recruiting and use of replacement workers – see evidence document #1.

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As evidence of the effectiveness of the coercive nature of the dispute after 17 weeks of labour disruption, the union membership signed a contract very little changed from that enforced upon them at the beginning of the disruption. (I have supplied a copy of the original "imposed" contract of July 21, 2005, and that which was accepted by the union membership in November.) Briefly, there are few significant changes. Evidence documents #2a and #2b.] For example, there are six instances of the use of the abbreviation “etc.” in the final agreement – more than in the proposed. And while some are innocuous – if that is possible in a legal contract – some are not and remained exactly the same in the two documents. For example:

25. 01 The Company may assign or transfer an employee, on a temporary or permanent basis, from one headquarters to another or from one job title to another, as required to conduct its business efficiently and to effectively deploy and develop its employees. Without limiting the foregoing, this includes such considerations as matching available staff to workload, reasonable accommodation, placement of surplus, training and development of employees, moves associated with office closures, consolidations or centralizations, etc.

The employees have given the employer the right to transfer any body any where, at any time, for any reason, regardless, experience, familial demands and, astoundingly, the heart and soul of union contracts, seniority. A retired employee has this to say about the new collective agreement:

I have grave concerns, (as do others), about our Pension Plan with this Co. [TELUS] and this Union [TWU]. Last collective agreement there was a cut of the employer’s contribution of .75%. The Co. is setting up their own L[ong] T[erm] D[isability] plan and the criteria for qualifying will be different than [it was for] the LTD plan under the T[elecommunications] W[orkers] P[ension] P[lan]. Meanwhile, the Union has to continue funding our LTD plan for the people who are still on it. So when I asked the Administrator of the Plan where the money was coming from for that, she said that they are doing a review of the LTD plan and will be negotiating with the Co. to cover it, so, - how successful do you think we will be to get more money out of the Company for our LTD plan? How does zero, nada, nil, zilch, forget it, ha ha ha, sound to you. Because the C.A. was written by the Co. there was NO consultation with our Plan. And the members passed this C.A.

(As a point of interest, this issue of the LTD funding was not discussed by the union executive at the ratification meeting I attended, nor do I remember seeing it in their literature preceding the second vote.)

And has the employer made good on the new found power it has? Yes. TELUS has begun the process of dismissing significant portions of its

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workforce, as it may now easily do under its current contract, but which would have been more difficult under the old one. (For example, the DAC offices on the second floor of the "Glenlyon" office – where I work on the first floor.) This makes manifest one of the significant fears the membership had while picketing, and that had kept them on the picket lines 17 weeks. The other was that the new contract would allow the company to displace a unionized workforce at will with contract workers. And this too, has begun to happen, as, for example, the janitorial services have been expunged from the union and that vacuum has been filled by contract workers. The company can, as the above example affirms, move any one any where at any time – and this too, they have begun to do, and which most employees believe has as its primary purpose getting as many “troublesome” union-strong British Columbia employees to quit as they can. (At a time the company can have many of the service jobs done anywhere in the world, offices are being closed in BC and moved to Alberta at not insignificant and, ostensibly, unnecessary expense.) And the final example I will here cite is TELUS having surreptitiously announced its intention to keep on staff until further notice some of the replacement workers as contract workers in Installation and Repair. This is in contradistinction to its preamble to the new collective agreement regarding contract workers in "traditional/core" jobs, where the company announced that TWU members may be required to work with contractors for no more than two weeks after the locked out employees' labour return to work. (This requirement was also specified in my indoctrination process, complete with Powerpoint slides, that I was forced to submit to upon and as a condition of my return to work after the dispute.) What effect would the presence of a significant number of replacement workers have on any purported fairness arguments? As stated in "Hills vs AG Canada", regarding disqualification of benefits failing to be a neutral (in)action, "In the final analysis, while it might be desirable that the government remain neutral in a labour dispute, it is questionable whether the disqualification provision, applied to the circumstances of this case, would in fact achieve such a result." This citation pre-dated the existence of legalized replacement workers under the Canadian Labour Code, the existence of which makes this argument even more germane! In fact, under the statutory circumstances extant today as they relate to both the EI and CLC acts, it would be unreasonable to expect an employer not to plan using EI and CLC against employees in breaking the union because it can count on not only reducing its own cash outflows into paycheques, EI and other benefits, but on the employee being denied EI benefits while the replacement workers minimize the income losses. Thus, an employer who uses replacement workers not only steals from labour labour's one and only tool in a labour dispute – its labour – but EI steals from the labourer their EI contributions by failing to give unemployment relief and

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turning a blind eye to an army of workers hired without benefits to further steal from the locked out workers their contributions. Under what rock would the disqualification from benefits in this circumstance be considered a neutral “action” by government or its agencies? Under what blind eye would this considered to be fair? Was the use of replacement workers effective in assisting the employer in imposing its collective agreement? I have copied here TELUS's proud third quarter announcement:

TELUS profits up 21% to $190.1M in Q3 on mobility division, dividends up 37.5% The Canadian Press Nov 10 2005 08:30:00 VANCOUVER (CP) _ Major telecommunications provider TELUS Corp. reported Thursday a 21.4 per cent surge in third-quarter profit to $190.1 million as growth at its mobility division powered revenues up six per cent. The Vancouver-based company said it has approved a 37.5 per cent increase in its dividend on the basis of the strong performance. TELUS (TSX:T) said it earned 53 cents per diluted share in the three months ended Sept. 30, which compared with a profit of $156.6 million, 43 cents per share, in the same period a year earlier The earnings came in just above an average forecast for a 52 cent per share profit, based on 11 analyst estimates gathered by Thomson Financial Operating revenues for the period were $2.06 billion, up from $1.95 billion a year ago Revenues from TELUS's mobility division were the main driver of the upswing, increasing 16 per cent to $864 million year-over-year. But stable revenues and a lengthy strike by workers in its communications division kept revenues flat in that business at $1.2 billion in the quarter TELUS's third-quarter results reflect continued strong, on-strategy growth,'' president and CEO Darren Entwistle said in a statement TELUS mobility delivered another outstanding quarter with excellent subscriber growth, ARPU and churn results that resulted in wireless revenue and EBITDA increases of 16 per cent and 28 per cent, respectively.'' The strong results prompted TELUS to raise its dividend to 27.5 cents from 20 cents per quarter, payable on Jan. 1, 2006

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Workers at the company's communications division are to vote on a new contract by a mail-in balloting process this week. Thousands of unionized TELUS workers walked off the job in July, a day before the company was to impose a new contract after almost five years of failed negotiations. The two sides reached a tentative deal in October, but that was rejected last week by the union membership by a margin of just 53 votes.

As ancillary evidence of TELUS having planned for just such an eventuality, I point you to their having pre-arranged by many months, if not years, the hiring of AFI, a known union breaking company; and by TELUS having hired the Bell executive who managed Bell's labour dispute, which resulted in a collective agreement that gave Bell the unmitigated power to force retirements, relocations and contracting out. I also point to TELUS's careful imposition of the terms of the contract via "soft lockout" measures, and their failure to bargain in good faith until they unilaterally imposed their “bargained” contract, as was repeatedly asserted in rulings against TELUS by the CIRB over the course of four years of negotiations. As a particular example of this evidence, I refer again to the cited CIRB Ruling RD0271. I have also included their pre-lockout pamphlet entitled "Team Member Guidelines for Potential Work Stoppage" which was published in anticipation of their locking out the TWU membership. Evidence document #3. In an impromptu “cheer-the-troops” meeting, TWU president Bruce Bell said to me and the dozen or so other picketers on the line on a Sunday in mid-August, 2005, that he had it on good authority that CEO Darren Entwistle was prepared for the dispute to extend for nine months or more. And as final evidence of the breadth of TELUS's planning, I cite below one members' recollection of a meeting that occurred between MP Peter Julian (New Westminster), Bruce Bell and others members of the TWU.

NDP MP Peter Julian has been unquestionably our strongest supporter. Carolyn Chalafeault (sp?) is from Local Labour Council (VDLC) Peter Julian said the TWU does not have the political support required to win this battle. On the other hand [TELUS CEO] Darren [Entwistle] has big and powerful political support. It is not a co-incidence that the anti-scab legislation [Bill: C-263, To prohibit the use of replacement workers in labour disputes] was defeated. The political world has known for at least a couple of years that Darren planned to use replacement workers. He called in his political favours to make sure the bill did not pass. There are many politicians saying that they wished that they could help us but their hands are tied. The fact is they won’t help us. Legislation is already in place that could be used to help us but they are choosing not

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to use it. Although these politicians claim they can’t, the truth is they won’t. Peter Julian sited many different examples of this to the group. Peter said the truth is, this battle is over. Our only hope is to vote ‘yes’ giving us 5 years to prepare for the next battle. We should use that time to put ourselves in a better political position. One of the TWU members at the meeting questioned Bruce Bell as to whether he was selling out or cracking too easily. It upset Peter Julian who quickly came to Bruce’s defence; but, more importantly Carolyn got very angry and said we have no idea what Bruce has been through or what he has been up against. (Please note that this is coming from a woman who has 30 years experience in the labour movement and is as hard core labour as they come. So her comments should not be taken lightly).

(I have requested Julian's affidavit or to be a witness, but have yet to get a response.) Up to this point I have made general arguments relating to the failure of the EI act to be neutral in a dispute in which the employer, as part of a union breaking agenda that was years in the making, relies on EI to follow its blinkered pattern of disentitlement rulings to abet their battle plan – especially in the event of a lockout with expectations that it would be protracted – such as what occurred at TELUS. Now I would like to address the particulars of my situation, which extends beyond the general statements above. TELUS, has made it clear in its official lockout announcements that those of us who find work with a competitor will be fired. From TELUS's pamphlet entitled "Team Member Guidelines for Potential Work Stoppage":

Question: Can I work full-time or part-time for another telecommunication's company or competitor?

Answer: No. Even during a work stoppage, you remain a TELUS employee and are subject to conflict of interest policies.

I question whether or not such an edict is legal or enforceable. However, as an Outside Plant Technician (Tech Level III – now called "Engineering Technologist" in the new collective agreement) specializing in telecommunications, the only other comparably paid job that I am readily qualified for, is with a competitor. And as an employee with twenty-four (24) years in BC Tel/TELUS, I would be putting at risk, in seeking employment with a competitor, twenty-four years of company contributions to my pension because they do not lock in until my twenty-fifth anniversary. For myself, all things being equal, the company whether deliberately (which I suspect) or not, is taking advantage of the EI's desire to keep from employee's the

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company's contributions to EI by threatening consequences for my seeking such employment. Dis-entitling me further imbalances from me towards TELUS the balance of power in the labour dispute, and the blanket denial of my claim clearly fails EI Board's averred neutrality mandate in my case. I repeat from JUDGEMENT NO: A-175-84 COURT FILE NO: 19094, re. CUB 8764;

b) Employer financing strike against himself It is also argued that the legislature cannot have intended that the employer, through his contribution to the unemployment compensation fund, finance a strike against himself. This argument does not take into account that such contributions will eventually be shifted by the employer to the consumer or to his or her employees. Such "financing" may not even materialize since strikes are often of lesser duration than the usual benefit-waiting period. Even if it did, the absence of benefits during the waiting period, combined with the prospect of benefits amounting to a fraction of normal wages, will rather dissuade labour unions from calling a strike than encourage them to do so (Shadur, supra, at p. 298). [My emphasis.]

Because of my wage group within TELUS – I am amongst the highest paid employees of TELUS's bargaining unit – when the labour dispute began I did not consider applying for EI for two reasons: the benefits paid would not suffice to cover my expenses, and I suspected that EI would rule me ineligible for benefits. However, and significantly, I did not even research the validity of my suspicion because I was too busy finding work outside my field of expertise that would pay enough to complement sufficiently the picket pay I would be receiving to cover my living expenses. Picket pay was a flat rate, and not prorated to match income levels of the locked out picketers. And my expenses included a three year old mortgage. Given that I am a resident of greater Vancouver, such a mortgage is substantial. In this dispute I did not choose to sever my income. My employer severed my income in order to coerce me into accepting a labour-subjugating contract. Denial of EI benefits abetted TELUS's coercive aims when my efforts at earning income from disparate sources failed to meet my financial needs. My financial needs would have been somewhat ameliorated by EI benefits without hurting TELUS's ability to extend its revenue stream using replacement workers and because a great deal of TELUS's immediate income derives from the selling of services which require little if any labour, as is evident by the 3rd quarter results cited above. In my case, in this labour dispute, denial of my benefits was not a neutral act by the EI adjudicators. Furthermore, when my temporary employment as a painting sub-contractor was finished along with the painting project for which I had been contracted,

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I once again chose to find work outside of my field of expertise. And since I had learned that I would be unable to survive financially or physically as a competitive contract painter, I sought work less physically demanding, but which I felt I would be capable of doing if given a chance. As I noted in my original letter of appeal, I applied for a marketing position at the Arts Club Theatre and as a lecturer/educator for the Council of Canadians, and a few other lesser positions, without success. Not surprisingly, my being a “mere” telecommunications engineering technologist, albeit with a good vocabulary and creative turns of phrase, was not enough to get me hired at any of these positions. I was more than willing to work during the labour dispute – this is clearly shown by my having actually got a job for which I worked 45 hour weeks – and by my applying for several other jobs when the painting job was completed. EI benefits are not a tool I can use to crush my employer. EI benefits are what I would have been able to use to just barely get by without excessive reliance on credit. EI's failure to act abetted the company's plans, as they applied to me, in bludgeoning acceptance of its imposed "collective agreement" by inexorably increasing my personal debt. Denying me benefits for which I had at least partially contributed was in my particular circumstances neither fair nor neutral: it abetted my employer's use of replacement workers to exhaust not only my own personal resources but those of the TWU as well. I now cite from two dead white philosophers. Their comments on the balance of power between labour and the owners of labour of two hundred and one hundred years ago are as vibrant and on point today as when they wrote them. And while you may dismiss them with nary a thought as belonging to a different time, I contend that, in our age of corporatist media, a corporatist bias in the CIRB, a corporatist government that recently acted to keep enacted replacement worker legislation, the pro-corporatist anti-labour oligarchical nature of Canadian society today is not as far from what Adam Smith and John Stuart Mill described as we would like to believe. From Adam Smith:

It is not, however, difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into a compliance with their terms. The masters, being fewer in number, can combine much more easily; and the law, besides, authorises, or at least does not prohibit their combinations, while it prohibits those of the workmen. We have no acts of parliament against combining to lower the price of work; but many against combining to raise it. In all such disputes the masters can hold out much longer. A landlord, a farmer, a master manufacturer, or merchant, though they did not employ a single workman, could generally live a year or two upon the stocks which they have already acquired. Many workmen could not subsist a week, few could subsist a month, and scarce any a year without

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employment. In the long-run the workman may be as necessary to his master as his master is to him, but the necessity is not so immediate. (Smith, Adam. An Inquiry into the Nature and Causes of the Wealth of Nations, Bk. I, Ch. 8, “Of the Wages of Labour” par. 12.)

From John Stuart Mill:

It is a great error to condemn, per se and absolutely, either trade unions or the collective action of strikes. Even assuming that a strike must inevitably fail whenever it attempts to raise wages above that market rate which is fixed by the demand and supply; demand and supply are not physical agencies, which thrust a given amount of wages into a labourer's hand without the participation of his own will and actions. The market rate is not fixed for him by some self-acting instrument, but is the result of bargaining between human beings—of what Adam Smith calls "the higgling of the market;" and those who do not "higgle" will long continue to pay … more than the market price for their purchases. Still more might poor labourers who have to do with rich employers, remain long without the amount of wages which the demand for their labour would justify, unless, in vernacular phrase, they stood-out for it, and how can they stand out for terms without organized concert? What chance would any labourer have, who struck singly for an advance of wages? How could he even know whether the state of the market admitted of a rise, except by consultation with his fellows, naturally leading to concerted action? I do not hesitate to say that associations of labourers, of a nature similar to trades unions, far from being a hindrance to a free market for labour, are the necessary instrumentality of that free market; the indispensable means of enabling the sellers of labour to take due care of their own interests under a system of competition. There is an ulterior consideration of much importance…. Experience has at length enabled the more intelligent trade to take a tolerably correct measure of the circumstances on which the success of a strike for an advance of wages depends. The workmen are now nearly as well informed as the master, of the state of the market for his commodities; they can calculate his gains and his expenses, they know when his trade is or is not prosperous, and only when it is, are they ever again likely to strike for higher wages; which wages their known readiness to strike makes their employers for the most part willing, in that case, to concede. The tendency, therefore, of this state of things is to make a rise of wages in any particular trade usually consequent upon a rise of profits, which … is a commencement of that regular participation of the labourers in the profits derived from their labour … since to it we have chiefly to look for any radical improvement in the social and economical relations between labour and capital. Strikes, therefore, and the trade societies which render strikes possible, are for these various reasons not a mischievous, but on the contrary, a valuable part of the existing machinery of society.

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(Bk. V, Ch. 10 par 32: Mill, John Stuart. Principles of Political Economy with some of their Applications to Social Philosophy. Edited with an introduction by W. J. Ashley, M.A., M.Com., Professor of Commerce in the University of Birmingham, Sometime Fellow of Lincoln College, Oxford. 1909, London; Longmans, Green and Co. Based on the 7th edition. First edition published 1848; first publication of the 7th edition, 1870.) [My emphasis.]

I have used a rather odd phrase, above: “… in our age of corporatist media, a corporatist bias in the CIRB, a corporatist government …“ What do I mean by that? Here are examples of what I mean. Throughout the labour dispute, in typical anti-labour fashion, the media described the dispute as a “strike”. Rarely was it described as a “lock-out.” When I managed to “catch” Fazil Mihlar, an editorialist of The Vancouver Sun, libeling the TWU in The Sun’s effort to abet TELUS its pre-lockout propaganda, not only did he admit to having knowingly lied, but he rationalized it: While it is true that the TWU proposed renewing the existing contract with

improvements, our considered judgement was since Telus [sic] was a new company (merging of the two firms from Alberta and B.C.) and the competitive landscape had changed, any proposal should consider these realities. So in our view, there was no new proposal or counter proposal to what Telus [sid] had on the table. [See evidence document #4a.]

When I rejected Mihlar’s self-serving, self-aggrandizing panegyric to the BC Press Council, my complaint was dismissed because Mihlar’s editorial “was not intended to be, and was not, a chronology of labor [sic] relations between the Telecommunications Workers' Union and Telus [sic], or a chronology of events.” See evidence document #4b. The CIRB, during the course of the “negotiations”, and during the dispute, developed a reputation amongst the labourers of delaying decisions requested by the union; for example, the Union’s request for an expedited decision to the CIRB on TELUS’s use of replacement workers to undermine the TWU’s effectiveness as a bargaining agent was not acted on in 6 or 7 weeks. When TELUS was found guilty of unfair bargaining practices, TELUS lost on appeal. That loss took almost a year to be decided, that year being a delay that benefited TELUS’s “negotiating” replacement worker preparations. But, most amazingly, in having re-confirmed that TELUS had bargained unfairly, the CIRB struck the penalty that had been originally imposed! See evidence document 5, from which I have cited the pertinent bits. CIRB Board Files: 24220-C, 24375-C CIRB/CCRI Decision no. 317 April 20, 2005

[276] This reconsideration panel upheld, for the reasons set out in this decision, the original panel’s ultimate findings that the employer communications were impermissible and contrary to section 94(1)(a) of the Code. [277] This panel concluded that the imposition of the remedial relief,

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including the communications ban, in relation to the first complaint, and the imposition of the order directing the employer to offer binding arbitration to the union, in relation to the third complaint, constituted errors in law or policy that cast serious doubt on the interpretation of the Code. ... Following a thorough review of the extensive submissions of the parties, the Board is allowing, in part, the present reconsideration application, with reasons to follow. Specifically, this reconsideration panel:

1) upholds the ultimate findings in respect of the alleged contraventions of the Code, that form the subject matter of Board File no. 23742-C, no. 24063-C and no. 24160C; 2) annuls the remedial relief, both the declaration and orders, issued in relation to Board File no. 23742-C as imposed by the Board in its April 8, 2004 decision; 3) annuls the order directing TELUS to offer binding arbitration to the TWU that was issued in relation to Board File no. 24160-C; and 4) reinstates and continues the January 17, 2004 interim cease and desist order, as amended, so that it will have full force and effect and will bind TELUS until the conditions set out in section 89 of the Code have been fulfilled.

This is a unanimous decision of the Board ...

And, finally, the failure of the federal government to remove from the labour code the replacement worker legislation. The above comprises a short list of the oligarchic, anti-democratic, nature of the Canadian labour environment that made itself evident during this labour dispute. And it is this concert of disparate parties enacting a common anti-labour theme that I have loosely called “corporatist.” At this point, I would like to bring to the board's attention my concerns regarding the "Labour Dispute Questionnaire" that was mailed out to me before my claim for benefits would be processed. (Exhibit 5.1 from the Board’s appeal package.) The labour dispute questionnaire introduced the notion that a willingness to cross the picket line is, perhaps, a condition upon which I would be eligible for benefits. From the questionnaire:

The information requested below is required to determine your eligibility for benefits. … Please sign and return this form in the enclosed self-addressed envelope. Failure to provide the requested information may delay your claim or result in a denial of benefits (my emphasis).

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This is a cruel joke! Actually, it is a lie: none of the information asked for on the form is required by 36(1) to determine my ineligibility to receive benefits. As soon as I confirmed that my claim arose as the result of a labour dispute on my initial application for benefits, regardless of any other circumstances, my claim would be denied! In fact, as per FCA Docket A-90-81, my claim would have been denied even if it had been unfair to deny it! With that stark reality staring out at me from the jurisprudence, the questionnaire I filled out on the state of my labour situation is a clear violation of section 12 of the Charter:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment [my emphasis].

Knowingly giving someone under considerable financial pressure and familial stress false hope is clearly a form of unusual treatment, in as much as that was unnecessary. The questionnaire gave me hope that my claim would not be denied. My employer locked me out for 17 weeks and the labour dispute questionnaire proffered me a lie! The Board would be far more honest and less cruel to have sent out an immediate denial of the claim because I had indicated I was embroiled in a labour dispute. I extend that argument, and suggest that the board made a mockery of 36(1) by mailing me this questionnaire because not only did it unnecessarily put false hope in my heart, it also wasted my time and the time of the board’s agents. Furthermore, all of the questions asked were either irrelevant, redundant, inappropriate or a violation of my rights. Instead, the weak hope the Board could have offered would have been to supply the meager means and reasons of how and why I could appeal that denial. And honesty would have compelled them to state that such an appeal would be without question denied. The rigmarole of having to fill out the labour questionnaire not only wasted time and money, but delayed my ability to appeal that denial by the time it took to the board to receive and process the questionnaire. However, and regardless of the inappropriateness of the questionnaire, I now turn my attention to its purpose. Why does this questionnaire, which is unnecessary to 36(1), even exist? Is the inference to be made that a willingness to cross on my part, that I was unable to put into action because of extenuating circumstances, would entitle me to benefits? I repeat: why else would such a question be extant on the questionnaire, but to determine my eligibility for benefits based on my state of mind? I would like to point out that whether or not I am willing to cross a picket line is not only irrelevant for the purposes of disentitlement – as your own jurisprudence amply attests – but the existence of the question suggests that a willingness to cross the picket line may actually qualify me for benefits.

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Even if I ignore the existential nature of the questionnaire, there is a serious Charter issue its question infringes. If I am to infer that my crossing the picket line would entitle me to benefits, by the existence of the question about my willingness to do such a thing, then the questionnaire forces me to chose to either seek financial relief through crossing a legal picket line, or face not just the disgust and censure of my fellow labourers, but also my getting disbarred from my union. My willingness to cross a picket line would entail by necessity my getting disbarred from an association of fellow citizens, and would violate my rights to associate under 2(d) of the Charter. And as proof of such a consequence for my crossing the picket line, in August the TWU's local executive officers began the process of both disassociating proven TWU members who scabbed and levying fines of up to 1000 (one thousand) dollars per instance of scabbing. Furthermore, the labour dispute questionnaire would seem to suggest that I would quality for benefits if I had been willing to go against my conscience and abet TELUS's efforts to destroy a legal organization with which I associate and that has as its primary purpose the promotion of a healthy and justly paid CANADIAN workforce, a workforce which must needs be comprises a healthy Canadian society. I refer you to question 7 of the questionnaire: 7(a) Was a picket line established at your place of employment? If yes, did you attempt to cross the line? What happened as a result of your actions? I repeat: this question implies that my willingness to cross the picket line may have qualified me to receive benefits. Why else would the question be extant? My employer, TELUS, has demonstrated continuous record breaking profits, record breaking executive salaries and bonus packages and continued high share values. I cannot, in good conscience, help promote corporate greed regardless how many politicians have sold out to the corporate greed-based ideology that has as one of its demonstrable objectives the complete and unnecessary subjugation of labour and the utter destruction of the middle class that I believe is absolutely necessary for a hale society. Subsection 2(a) of the Charter expunges the validity of how 36(1) of the EI Act is being administered and enforced by the Board as it pertains to me because I will not, CANNOT, in good conscience assist TELUS corporate greed its quest to destroy not just an organization with which I am free to associate, but the health of Canadian society. As evidence of TELUS's intention to destroy the TWU and hurt Canadian society, it publicly announced that it had opened a call centre in the Philippines and contracted a call centre in India. I also refer you to public statements made by TELUS’s CEO and VP of Corporate Communications; see par. 45, 46 of Evidence Document 1. About two months into the dispute TELUS mailed to me an advisory informing me that those of us in BC who wanted to assist them in breaking the TWU would be given safe employment in Alberta. (I've paraphrased their

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document.) TELUS even directed their first level managers to follow up the written advisory with a phone call – which I received some time in late August or early September. I believe that both these acts are at least in contravention of the Canadian Labour Code if not illegal harassment. That TELUS then proceeded to proffer IPODS as bribes was illegal. Again, as usual, neither the CIRB nor the Minister of Labour gave TELUS anything but their union-breaking friendly blind eyes. Now, even if I had the morality of my TELUS’s CEO to consider TELUS's offer of safe employment – which I do not – and a willingness to violate my conscience and belief in social justice – which I have not – I am protected from having to compromise either because of the protection given me by 2(a) of the Charter. And that concludes my appeal. Listing of Documents: 1. File: Replacement Workers CIRB 9 Sep 05.pdf. 2a. Imposed contract dated in April of 2005. 2b. Signed contract dated in November of 2005. 3. TELUS Pamphlet entitled "Team Member Guidelines for Potential

Work Stoppage." 4a. Sun Editorial, my complaint, Fazil Mihlar’s response. 4b. BC Press Council’s dismissal and my response. 5. CIRB decision RD0317.