© 2000  Karen Selick
Duking It Out Over EI
An edited version of this article first appeared in the June, 2000 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Duking It Out Over EI

If it weren’t going to be such a waste of taxpayers’ money, the upcoming court challenge to the Employment Insurance Act would be an amusing spectacle.  In one corner of the ring there’ll be the government, and in the other corner there’ll be--oops, it’s the government again, thinly disguised.   These twin heavyweights will duke it out over which version of coercive wealth redistribution they get to impose upon Canada’s workers. 

In theory, there are some real humans involved here--three women who feel they got cheated when the government changed the rules of the unemployment insurance game in 1996.   Each became ineligible for benefits in circumstances which would have entitled her to collect under the old rules.

Kelly Lesiuk, for instance, sought benefits in 1998 while expecting her second child.  However, she had worked only 667 hours in the preceding year.  The rules said she needed 700.  During her first pregnancy, three years earlier, she had needed only 300 hours to qualify.  She was upset.

"I had no idea the system had changed," Ms. Lesiuk complained.  She and her husband had to cash in RRSPs and borrow money as a result.  "It was very difficult for us." 

Excuse me--are we supposed to send an army of foot-soldiers door-to-door to notify people every time the law changes, just in case somebody hasn’t been reading the newspaper?  Surely if EI benefits were such an important part of Ms. Lesiuk’s child-rearing plans, it behooved her to look into the eligibility requirements before she got pregnant. 

But that’s not the attitude of the magnanimous folks at the Public Interest Law Centre (PILC), a branch of Manitoba Legal Aid. No doubt they could hardly believe their good fortune when Ms. Lesiuk walked into their offices with her tale of woe.  She was their chance to tackle that other branch of government--the mean, miserly branch that was nowhere near as generous with other people’s money as the PILC thought it should be. 

So, fortified with a grant from the Court Challenges program (naturally), they laid plans to challenge the Employment Insurance Act in Federal Court.

Their main argument is that the 1996 amendments reduced the availability of EI benefits to part-time workers.  A preponderance of part-time workers are women.  Therefore, the changes discriminate against women and violate section 15 of the Charter of Rights.

Very interesting--until you look at the remedy they propose.  They want to roll back the law to its pre-1996 state, where workers could obtain benefits by working as few as 300 hours in the qualifying period.

But what about workers who worked only 299 hours?  Surely they could make the same argument as Ms. Lesiuk.  It would be quite extraordinary if those who worked under 700 hours were predominantly women, but those who worked under 300 hours were not. So the PILC’s desired remedy probably wouldn’t eliminate the so-called discrimination against women; it would just lower the bar to the old but equally "discriminatory" level.  Is this really worth a big court battle?

The second argument is even more specious.  The PILC claims that the amended Employment Insurance Act violates paragraph 36(1)(c ) of the Constitution Act.  In abbreviated form, that paragraph states:  "…the government of Canada and the provincial governments…are committed to…providing essential public services of reasonable quality to all Canadians."

According to the PILC, employment insurance is an essential public service, and benefits have sunk so low that the system is no longer of reasonable quality.  Convince a judge of this, and the government can be forced to augment the program.

Horsefeathers.  Read in full and in context, section 36 is nothing more than a mealy-mouthed attempt to justify regional transfer payments, without imposing any affirmative duty on Parliament or the provincial legislatures to do anything in particular.  

It’s bad enough that individual Canadians have to submit to the opinions of the current gang in Parliament to determine what "reasonable" use can be made of their hard-earned paycheques.  At least they get the chance to throw the bums out every few years.  It would be even worse if these decisions were henceforth usurped by the judiciary, an elite group entrenched forever in their jobs and answerable to no-one.

Despite the absurdity of this legal challenge, employed Canadians do have good reason to detest EI.  The rules force some to pay in even if they work too few hours to qualify for benefits.  Others pay in throughout many decades in the work force and never make a claim.

The solution, however, is not to crusade for easier or more generous benefits.  It’s to stop extracting premiums from those who are ineligible for benefits.  It’s to adopt actuarially sound premium and benefit scales, reflecting the real risks and claims experience of myriad individuals, then make participation in the EI scheme optional for all employees.  

Voluntary EI is the last thing that either the federal government or the PILC would ever want to see.  People might just decide not to participate.  If the public ever started questioning the axiom that the government knows what’s best for them, they just might not put up with paying for folly like this upcoming court fight.  

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June 22, 2000