Response to Respondent's Argument

8/14/2019 Response to Respondent's Argument

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Guy Duperreault Appellant 1Hearing by the Umpires, November 6, 2006

Introduction

I have read and considered the respondent's memorandum, and have been able todiscern many weaknesses in their arguments. I have chosen to rebut the mostimportant failures mostly in the order of how the respondent presented them.

With my rebuttal I have included additional case law and evidence. These I haveindicated, and have also provided three copies for this hearing.

Rebuttal

Respondent par 4-5Canada (A.G.) v. Valois(Tab 6), par 11, re-iterates why s.44(1) (now 36(1)) disentitlesworkers whose unemployment is the result of a labour dispute from receiving benefits.Valoisbegins to examine the rules around the exceptions to the rule, specifically what isthe nature of voluntary participation in the dispute versus fear of bodily harm if onewere to attempt to cross the picket line. Is the perceived threat of bodily harm enoughto disallow the disentitlement under s.44.2.(b) (current 36(4))?

Valoisdates from the year 1986. Additionally, Carrozelladates from the year 1983.Both of these cases stand for the proposition that: 'participating in a labour dispute', inaccordance with the meaning of that under section 36 of the EI Act, has been adoptedby the Courts as meaning: 'a refusal to cross, or a failure to attempt to cross a picketline'. See the case ofJeanette Black 2001 FCA 255(Rebuttal Authority 1). If an EIapplicant refused to cross a picket line or failed to attempt to cross a picket line, thenthat person is deemed to have 'participated in a labour dispute', and benefits aredenied.

It is for this evaluation, presumably, that I was asked if I had tried to cross the picketline. While I see the rationale of this argument in rare circumstances, I disagree with

the need for it in most cases because of three other questions asked on the originalapplication for benefits. These questions were asked and answered before I was asked"Why are you no longer working?" at least with the application I submitted. Seeexhibits 3.3 and 3.6 (tabs R-10 & R-11). I was asked if I was a member of a union,what was the name of the union, and to which local I belonged. I answered in theaffirmative, gave the name of my union and the number of my local. With theseanswers I have unequivocally stated my participation in the labour dispute by thenature of my being a member of a union.


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It is clear from the testimony cited in Valois, that he too was a member of a union and

by that status a participant, even if unwillingly, in the strike. See par 33, (tab R-9)."The claimant, a member of Local 865 of the International Union of OperatingEngineers...." In this case the questionnaire may be seen to be of some value, as itwas not his union that was striking, but another union. But it was of very limited valuebecause his situation led to a great deal of court time to try and decide whether or notthe denial of claims would be upheld. And I can see that, undoubtedly, in many if notmost cases the answers on this questionnaire would not, regardless how the applicantresponded to them, avert denials and appeals. It was made clear in Valoisthat proof ofintimidation was a factor in the decision.

The pith of the problem is that the answers on the questionnaire are not proof, even in

the case of striking workers. As will be shown in this argument, as it was applied to thelock-out situation I was experiencing, it was not only irrelevent, but cruel only in partbecause of its indeterminacy.

Additionally although Valoisand Carrozellaare common law decisions of the Courts, thecase ofRWDSU v. Dolphin Delivery (1986) 2 S.C.R. (Rebuttal Authority 2) determinedthat although the Charter does not apply directly to the common law, the Charter hasan indirect affect on the common law. In Dolphinthe Court stated: 'the judiciary oughtto apply and develop the principles of the common law in a manner consistent with thefundamental values enshrined in the Constitution.'

Therefore, following this argument, two questions to be asked are:Does the Questionnaire itself,

And does the 'policy' developed from the jurisprudence ofValoisandCarrozellawhich requires an applicant for EI to attempt to cross a picketline in order to obtain an EI benefit,

violate the Charter?

Probably because of the case law (common law) from both Valoisand Carrozella,government has interpreted these cases and have developed the EI Questionnaire (theQuestionnaire) in an attempt to gain information whether an EI applicant for benefitsmade an attempt to cross the picket line. But because the questionnaire is an 'internalpolicy' of Human Resources and Skills Development Canada (HRSDC), it is thereforesubject to Charter scrutiny.

In the case ofCanada (M.E.I.) v. Carrozella, it is easy to see that the questionnairewas of little value because the circumstances were grey enough to once again lead to


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the tribunals and judiciary to decide for or against the denial of benefits. And, again,this greying arose even in the less grey area of a strike versus a lock-out.

But Carrozelladoes go to the heart of why the questionnaire infringes on an individual's2a and 2d rights. It, and the rulings in Valoisand Carrozella, argue that attempting tocross a picket line is enough to become, or at least a necessary condition beforebecoming, eligible for benefits. It is that 'attempting' that goes to the spirit of freedomof conscience. If in good conscience I support the idea that a vibrant middle class isnecessary for a healthy society, for example, but have been put into dire straights by anemployer attempting to destroy that middle class with, for example, contracting out tonear slave labour markets and mandatory overtime clauses, then the questionnaire'sasking me if I attempted to cross a picket line is also asking me if I am willing to giveup my conscience in order to receive benefits.

I think that the best way to describe the inadequacy of the question is to pose itdifferently. Instead of asking if I attempted to cross a picket line, what could havebeen asked was "Was there evidence that those picketing would block your entryand/or threaten or intimidate you if you attempted to cross the picket line?" With thisquestion comes a completely different emotional response. And with this kind ofquestion one could imagine an unscrupulous but conscientious union organizing itself tobe threatening and intimidating to its members in order to show that the membershipdeserves to be exempted from a denial of benefits. This clarifies why the question isinappropriate. And posed this way, it also becomes crystal clear why the questionnairewill not avert denials and appeals proof is absent in the answers to questionnaire.

As it stood, at the time however, I wrestled with that question. If I answered 'yes'would I be eligible for benefits? I had been locked out for two months, by then, by anemployer who allowed, encouraged and bribed its Albertan unionized labourers to crossthe picket line as well as with guarantees of safe passage and their hired AFI goons onhand to push into the cement the faces of the mostly peaceful picketers. (See newevidence documents Tab R-20 and Tab R-21.) In this case the picketers were beingintimidated, and not those wanting to cross.

But as I wrestled with the emotional do I/don't I, should I/shouldn't I turmoil arousedby that question, I knew that the answer was moot because, even if I had been willingto cross, my employer would not have given me employment. TELUS's employee goalswere to divide the union between Alberta and British Columbia, and so blocked the BClabourer from crossing the line, even if they chose to do so, while using bribes andintimidation to encourage the Albertans to cross.

This leads to an interesting observation, one that renders the questionnaire even moreuseless: if I had expressed my willingness to cross the picket line, given that I was a


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resident of BC and the employer had refused to grant me access to my place of work,would I then be eligible for benefits? But wait a minute! That already describes the

situation! I was willing to work I showed up on a regular basis to work, but TELUSchose not to honour the existing labour contract and refused to allow me to report forwork. And so I manned an information picket to try in a very limited way todisseminate the truth about the lock-out that the media generally refused to reportexcept inaccurately.

What is cruel is that the act as it is currently written makes even this circumstanceirrelevant for the denial of benefits and the need for the questionnaire questionable.36(4) makes it absolutely clear that a union member can be and will normally be deniedbenefits because as long as s/he is in good standing with the union, by that standings/he will be directly interested in the labour dispute and therefore "deniable."

The questionnaire was designed to assess strikers and their pickets, not the informationlines of workers who were locked out but willing to work. It is clear from this that 36.1of the act fails to acknowledge the difference between strikes and lock-outs. And inthat failure, the dissemination of the questionnaire is indeed cruel treatment because itproffers mis-applied false hope while asking a desperate person to denounce his or herconscience and association for the sake of money.

And so, as the EI act stands, the path to forsaking one's conscience is tangibly made asthe already wealthy CEO pays himself 14 million dollars after having starved out hisemployees month after month after month. Under these circumstances one's freedomof conscience is, in effect, under attack. EI act s.36.1 and its concomitantquestionnaire abet that attack. S.36.1 does not require the questionnaire's questions,some of which were duplicated from the original application, and the others could justas easily have been asked within the original application for benefits, instead of underseparate cover. But regardless the refinement of the questions, entitlement to benefitsunder 36.4 will likely happen only under appeal and counter-counter appeals with proof.

The respondent argues, in par 29 (Tab R-14) following Roach, that "'conscience' has arelated meaning to 'religion'... in that they both describe the location of profound moraland ethical beliefs, as distinguished from political or other beliefs which are protectedby paragraph 2(b)." Unfortunately these two sections of the charter have an overlap.If I say I have the profound, willing to fight to the ends of the earth belief thatcontracting out to slave labour markets is unethical and socially pernicious, is that 'just'a belief and hence discountable from my conscience? Or does it mean that thesedeeply felt thoughts are an expression of my conscience, as informed by my beliefs andcritical observations of history? For some the belief in democracy is so slight that itneither informs nor tempers their conscience: for example, those who feel justified incontracting manufacturing or call centre services to the slave labour markets of the


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export processing zones. For these progressive social thinkers they can, with great self-serving blinkered satisfaction, burp contentedly the delusion that the 'free' democratic

flow of money is social democracy. For these people it does not matter that EPZworkers are forced to work days on end with few breaks, often in fire trap buildings andwith little or no environmental controls. I assure you, that that is not the situation inmy case. My conscience has been affronted by the press's, the courts, and thepoliticians pandering to their oligarchic lords while quietly here, sneakily there,undermining whatever few laws existed that protected labour from the greed that sawchildren's toes burned with fire to force them into flues not more than two centuriesago; and which, today, sees a similar greed selling, for example, children's bodies forthe sexual pleasure of adults.

And even with that said, the respondent has managed to misrepresent what the justices

wrote in Roach v. Canada(Rebuttal Authority 7). The respondent begins by quotingpar. 45, and then suggests that because 'conscience' has a related meaning to 'religion'that by this I have mis-applied my argument to the wrong section of the charter. Idisagree. In fact, so does Madame Justice Wilson in R. v. Morgentaler, who wasquoted in R. v. Roacha few short lines below those cited by the respondent in par.45. And so does Chief Justice Dickson in R. v. Edwards, also quoted in R. v. Roach,(par46). Because of the nature of how the respondent distorted the meaning of theircited paragraph 45 and 46, I will quote them in their entirety, and expand it to includeparagraph 47 (Tab R-16):

45. There is little authoritative jurisprudence on freedom of conscience underparagraph 2(a) of the Charter. However, the concurring reasons of MadameJustice Wilson in R. v. Morgentaler, 1988 CanLII 90 (S.C.C.), [1988] 1 S.C.R.30, at page 179, are instructive in their approach to freedom of conscience. Shestated:

It seems to me, therefore, that in a free and democratic society "freedomof conscience and religion" should be broadly construed to extend toconscientiously-held beliefs, whether grounded in religion or in a secularmorality. Indeed, as a matter of statutory interpretation, "conscience"and "religion" should not be treated as tautologous if capable ofindependent, although related, meaning [my emphasis].

It seems, therefore, that freedom of conscience is broader than freedomof religion. The latter relates more to religious views derived fromestablished religious institutions, whereas the former is aimed atprotecting views based on strongly held moral ideas of right and wrong,not necessarily founded on any organized religious principles. These areserious matters of conscience. Consequently the appellant is not limited


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to challenging the oath or affirmation on the basis of a belief grounded inreligion in order to rely on freedom of conscience under paragraph 2(a) of

the Charter. For example, a secular conscientious objection to service inthe military might well fall within the ambit of freedom of conscience,though not religion. However, as Madame Justice Wilson indicated,"conscience" and "religion" have related meanings in that they bothdescribe the location of profound moral and ethical beliefs, asdistinguished from political or other beliefs which are protected byparagraph 2(b).

46. In my view, with respect to both freedom of conscience and freedom ofreligion, the appellant will have to show that the burden imposed on him by theoath is more than trivial or insubstantial. As Dickson C.J. wrote in R. v.

Edwards Books and Art Ltd., 1986 CanLII 12 (S.C.C.), [1986] 2 S.C.R. 713, atpage 759:

The purpose of s. 2(a) is to ensure that society does not interfere withprofoundly personal beliefs that govern one's perception of oneself,humankind, nature, and, in some cases, a higher or different order ofbeing. These beliefs, in turn, govern one's conduct and practices. TheConstitution shelters individuals and groups only to the extent thatreligious beliefs or conduct might reasonably be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable ofinterfering with religious belief or practice. In short, legislative oradministrative action which increases the cost of practising or otherwisemanifesting religious beliefs is not prohibited if the burden is trivial orinsubstantial.

The impact of a law or government action on freedom of conscience or religionhas been called a "coercive burden" in cases such as Edwards Books, supra. InEdwards Books, supra, Chief Justice Dickson was discussing the state-imposedcost of Sunday-closing legislation on retailers who for religious reasons observe asabbath or day of rest other than Sunday.

47. A similar analysis should be employed in assessing any interference withfreedom of conscience. This would require a claimant to show that his or herconscientiously held moral views might reasonably be threatened by thelegislation in question, and that the coercive burden on his or her consciencewould not be trivial or insubstantial.


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This is an extremely important and serious issue to me. To demonstrate to whatextent, I have provided another evidence document, an article I wrote more than 15

years ago called "Death by Freezing." (Tab R-17.)

As to the respondent's claim that section 12 of the Charter has no application, (par 5),all I can say is that they have clearly not been the victim of a false hope practical joke.When, after two months of little income, employed as an uninsured painter, I read thatmy attempting to cross the picket line would have given me benefits, I was angry,disappointed and bitter. I had discovered yet another anti-labour mechanism extantand living cheerfully within my so-called democracy. That questionnaire was extremelycruel, under the circumstances, both to me in my immediate situation by tantalizing mewith a benefit that would always recede from my grasp, and in the broader societal

view because it confirmed that even here the laws of 'my' so-called democracy havebeen set up to benefit oligarchic big money and to abet them their subjugation oflabour.

I would also like to re-iterate that s12 is blunt: "Everyone has the right not to besubjected to anycruel and unusual treatmentor punishment." The question treatedme, under the circumstance, cruelly.

In its efforts to subjugate its labour into accepting its imposed contract, TELUS hiredAFI thugs to protect its assets. Whether true or not, the grapevine was filled withstories of AFI thuggery, and associated TELUS firings of select members of its labourforce. While these grapevine stories would need an enquiry into TELUS labour-management practices during the five month dispute (nick-named the JASON by theemployees in deference to it having spanned July, August, September, October andNovember), I saw for myself the AFI agents harass an innocent bottle collector at 10pmone Sunday night because he had inadvertently crossed into the not well delineatedproperty of TELUS's Glenlyon offices in Burnaby. Within minutes four 'guards' hadsurrounded the small man, who spoke, it became immediately clear, poor English. The

AFI agents demanded in a threatening manner that he show them proof of identity.Not only was this quite likely illegal the AFI thugs were not police officers butneither I nor anyone else with me on the picket line that night had the slightest notionthat reporting the incident to the police would be of any value. Why not? BecauseRCMP officers made regular visits to share conversation, coffee and donuts with theTELUS AFI agents many of whom were ex-cops. Eventually the frightened bottlecollector revealed some form of identification, and with a laugh the goons wished him agood night. That image of my democracy is seared into my consciousness, and furtherinforms my conscience. This questionnaire asked me to attempt to cross the picketline, which was tantamount to supporting TELUS's efforts at intimidating its labour (andcitizenry!), before I would collect benefits.


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Another, rather interesting way to look at this, one which showcases how cruel and

stupid the questionnaire was under the circumstances, is for the respondent to fullyunderstand and recognize what TELUS's lock-out of the BC employee meant. Thepicket lines did not threaten the scabs sufficiently to stop the scabs that did cross in AB.And so, if I had been willing to attempt to cross the picket line, I quite likely wouldhave succeeded. I would have also been quite likely, and justifiably, jeered andshamed, but my physical well being would not be threatened. TELUS assured us allthat Albertan's willing to cross would be securely transported by their thugs, which theywere, as were the scabs hired from other provinces, the U.S. and Mexico. So, if I hadattempted to cross the picket line, and had succeeded, would EI have given me benefitswhen TELUS once again refused to allow me to work after having me carried off thepremises by their thugs or, as rumour had it, by officers of the law?

Or, would it have been considered cruel if TELUS had 'allowed' me to work, but shippedme to Alberta for my own protection, while my partially disabled wife was left at hometo struggle with legs that aren't working? Would it have been cruel to succeed incrossing the jeering picket line, but at the expense of my freedom to associate withlike-minded, peaceable, law abiding, taxpaying, citizenry?

A questionnaire that seeks or even one might say, 'entices' a person to 'make anattempt' to cross a picket line in order to receive a benefit, is cruel, in accordance withthe reasoning of Singh v Minister of Employment and Immigration (1985) 1 S.C.R.(Rebuttal Authority 3) which stated that:

'....Security of the person even on a purely physical level must encompassfreedom from the threat of physical punishment or suffering as well as freedomfrom actual punisment or suffering itself. In other words the fact of exposure isenough to violate security of the person.'

This is cruel within the meaning of section 12 of the Charter. Singhargues theproposition that where there 'may' be 'potential' of physical threat instead of 'actual'physical threat, this is still considered to be endangering the security of that individual.

Additionally, 'exposure' to potential violence violates 'security' of the person. Andclearly introduces the question of why is the government in the business of 'potentiallyplacing benefit applicants in harms way'. Note: although Singhinvolved section 7 ofthe Charter, Singhis still relevant under section 12 of the Charter. See also R vMorgentaler 1988 1 S.C.R.

I would like to extend this argument a little, and demonstrate another cruel aspect ofthe questionnaire. In its literature and propaganda immediately following its lock-out,TELUS made it clear to its BC employees that for their own protection against potentialviolence likely from the BC unionists they would not allow attempts to be made by BC


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employees to cross the picket line (see evidence document Tab R-20). As a member ofa BC union, I, and most everyone I talked with, saw this as just one of the many lies

employed by TELUS in its efforts to split the union between the BC and AB members.Upon reflection, however, as a result of my having made this appeal, I now believe thatthis stance by TELUS should have allowed the BC employees exemption from denial ofbenefits. TELUS advertised that bodily violence would be the result of attempting tocross the picket line, but the Charter guarantees us freedom from bodily harm: if anattempt to cross would bring us harm, then it would be cruel for s.36.1 to demand of usthat we endanger ourselves before being allowed benefits. What this scenariodemonstrates, in this case, is the cruel inadequacy of the questionnaire because itsformat is designed in such a manner as to unequivocally and completely fail to capturethis kind of information. Under no circumstances except via appeal would the BClocked out and threatened labourer be allowed benefits. What makes that even more

cruel is that the way the act is currently written, it would take an understanding ofCharter case law to imagine that TELUS's printed threats of violence in BC should haveexempted its BC employees from being denied benefits.

For these reasons, I disagree with the respondent's claim (par 5) that s.2(a) and s.12 ofthe Charter has no application in this case. I ask, in good conscience, what part ofthese circumstances does notmake the questionnaires treatment of me cruel?

As to s.2(d) of the Charter, I have nothing to say except that if I had been willing to goagainst my conscience and cross the information picket line for the lure of the lucre,then I would be facing fines and expulsion from the union. My freedom to associatewould be jeopardized by my need for work. In a 'proper' democracy this is a choicethat is unacceptable. Respondent's pars. 31 and 32 (tab R-15) are off point. I am nottalking about the activities of an association, and whether or not those activities areprotected under the charter. I am talking about my freedom to associate. In fact, notonly do the respondents miss the point, they missed the fact that their citation arguesmy point:

What freedom of association seeks to protect is not association activities quaparticular activities, but the freedom of individuals to interact with, support, andbe supported by, their fellow humans in the varied activities in which theychoose to engage [Re Public Service Employee Relation Act, [1987] 1 S.C.R. 313at par 88.] (Rebuttal Authority 6.)

My point, exactly! An individual attempting to cross a picket in order to attempt toqualify for benefits line would be jeopardizing his or her freedom to associate. It is notthe association's actions that are under attack, here, but the individual's. Again, thissituation points to yet another failure that arises because of 36.1's failure to distinguishbetween a strike and a lock-out. In a strike the members of the association have


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chosen a course of action to strike. If as an individual within that democraticorganization I disagreed with such a vote, I could choose, in good conscience, to

terminate my membership and association. But what is the situation in the case of alock-out? In that case the members of the association did not make an employmentchoice it was made for them. Financial desperation could, in theory, force people toattempt to cross the picket line, even though such an action could result indisassociation and fines. This would, in this circumstance, violate their freedom ofassociation.

Respondent par 8 (Tab R-12)I would like to comment on the respondents description of the facts. While they aretrue enough, their description is not really an accurate representation of the situation

because it does not in any way indicate that it was the employer who had made it clearwe were barred from reporting to work. Yet again the failure of the act to distinguishbetween a strike and a lock-out muddies and distorts the language that describes thesituation to the detriment of the locked out labourer. That is bias. And if you think thatsuch language, a mere interchange of 'strike' and 'lock-out' is semanticmeaninglessness, then our society has wasted an uncountable expanse of resources toremove gender bias from our official and unofficial languages. Why has our societyseen the need to remove gender bias if words don't mean anything significant? Ifmemory servers me well, it was generally those who benefited from the gender bias men who argued that removing the perfectly good word 'man' wouldn't achieveanything because 'man' derives from the Latin 'manus' meaning an ungendered hand,as in manipulation or manufacture. It was those who suffered under the language'sgender bias that wanted to see equality of representation in our language, andconcomitantly it was those who benefited from it that were blind to that benefit andcontent with the status quo.

The respondent's paragraph 8 is ostensibly benign, and may even be so relative tomore malicious examples. However, I compare it to a phrase like 'The chairman andthe postman, met the fisherman at the manhole to manufacture consent.' Who here,when reading it, did not assign a male to each of the occupations? And that is exactlywhy our society chose to remove from itself the ostensibly benign gender biasedlanguage. In like manner, the anti-labour bias in the respondent's paragraph 8 is anexcellent example of the nature of the bias of 36.1 of the EI Act, a bias against adistinguishable, recognizable, group the labourer and especially the locked outlabourer.

Respondent par 17 (Tab R-1)


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The respondent cites Hills, pars 41-45, which looks at the 36.1 of the act as it was bornin England. Their argument is flaccid because the labour situation at that time and in

that place is not the same as what is extant here and now. The respondentparaphrases the intent of 36.1: "The purpose of this provision is to bolster theneutrality of the employment insurance scheme by ensuring that neither party to alabour dispute is put in the position of funding the other's activities during the dispute."There is an unstated assumption about the flow of funds with respect to both parties,

which is that in a labour dispute both parties are forsaking revenues for the sake of ahiggling out a mutually acceptable labour agreement. What if that is not the case?What if one party has the ability to maintain its cash flows during the dispute? Isneutrality extant in that situation? But even without the issue of an employer such asTELUS being able to maintain its cash flows, the judges in Hillsquestioned thegovernment's neutrality argument in the case of lock-outs, par 46 (Tab R-5), with the

strong suggestion that it is unfair because

"... the law should but does not distinguish between strikes and lock-outs. Thegovernment can hardly invoke neutrality if it declines to differentiate between alegitimate grievance leading to a lock-out and a voluntary stoppage of workfollowing a breakdown in industrial relations. It is indeed difficult to classify asneutral a refusal to pay benefits in the former situation." ... "

The respondent, in citing a tiny piece ofHills, has conveniently ignored the greater partofHills' broad intent and criticism of the s.36.1 of the act.

Further, I see in the respondent's and the judges' use of the word 'should' a tell that allis not correct in the administration of 'neutrality.' The existence of 'should' in thiscontext implies that what is being 'shoulded' is in fact not happening. For example, ifthe sentence were recast to read 'The government takes a neutral stance in a labourdispute and does not support one side by providing unemployment insurance benefitsduring a labour dispute....' then it becomes blatantly apparent that it is untrue. Thegovernment does takes sides in a labour dispute, which was made crystal clear in theenactment in 1999 of the pro-scab legislation in section 94 of the labour code, and inthe motion to have removed that pro-scab legislation failing in early 2005.Government's non-neutrality in the case of the 36.1 is its blatant denial of thedistinction between a strike and a lock-out, because by its denial it is participating in alock-out through inaction to the benefit of the employer and to the detriment of thelocked out employee.

In Hillspar 46 the Supreme Court judges quote S.H. Ephron: "The neutrality principlecan serve as a justification for the 'labour dispute disqualification' only if the parties tothe dispute stand on equal footing. In the majority of instances they do not." This waswritten before the pro-scab legislation 94.2(1) was enacted, whose birth and continued


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existence impugns the veracity of the government neutrality arguments that are madein defence of 36.1. 36.1 was enacted before service centres were moved to the

Philippines or India by employer's intent on crushing their labour. It was enactedbefore scabs could be efficiently contracted from Mexico or the U.S.A. to work inCanada. In Hillsthe judges have explicitly stated that neutrality can only be assured ina labour dispute if the two parties stand on equal footing. With the pro-scab legislationand the willingness of the government to allow one party in a labour dispute to contractout labour to a foreign country, under no conceivable act of perverse imagination canthe government's role to remain neutral in a labour dispute be true. By inaction thegovernment participated in the dispute to the advantage of the one party and to thedisadvantage of the other party. By enacting pro-scab legislation, the government hasshown their desire to directly affect the outcomes of a labour dispute against labourunions. The Supreme Court elaborated this point with the caution in par 47 (Tab R-2)

that the act could be used as 'an instrument of coercion.'

Hillspar 50 provides an excellent summary of the failure of the 36.1 to be neutral: TabR-3

"... the rationale underlying s.44 as it was originally enacted in England andlater incorporated in its Canadian counterpart, does not today enjoy much favourin the United States or in Canada and no wonder, given the materially differentstate of labour relations."

Respondent Section B (pars 19-27)I find it interesting that the respondent cited Law v. Canada because a quick look atthe three criterion would put me, clearly, within a member of a distinct anddistinguishable group.

Citing from Law v. Canada, par 88.2.(A) - Tab R-4"The approach adopted and regularly applied by this Court to the interpretation

of s. 15(1) focuses upon three central issues:

(A)whether a law imposed differential treatment between the claimantand others, in purpose and effect;

(B)whether one or more enumerated or analogous grounds ofdiscrimination are the basis for the differential treatment; and

(C)whether the law in question has a purpose or effect that isdiscriminatory within the meaning of the equality guarantee.

(A) differential treatment:


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Following the respondent's own argument, it is clear that the law does cause differentialtreatment. Hillseven states that it does, while acknowledging that it 'shouldn't.' More

specifically, the law gives the union-breaking employer a distinct and decidedadvantage in a planned, expansive, extensive and expensively organized and protractedbreak-the-union dispute. Furthermore, the existence of this law provides a tool whoseexistence provides the employer another weapon, even if small, yielded by thegovernment but which the employer can rely on and plan for in its efforts to starve outits ungrateful labour. I repeat from Hills:

If an employer insists upon unreasonable terms in the settlement of a labourdispute and the employees are aware of the fact that unemployment insurancebenefits will not be paid if there is a stoppage of work dueJeanette Black 2001FCA 255 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 (par 47).

The existence of this law, in conjunction with s.94.2(1) of the Labour Code, furtherinspired TELUS to treat its locked out employees differently depending on their place ofresidence in an effort to coerce its desired contract. It was generally accepted by theBC membership that the TWU's strength was weakest in Alberta, in general because ofan anti-union sentiment therein, and because of the recent merger of the Albertaunions into the TWU. TELUS, abetted by both s.94.2(1) and s.36(1), exploited thatweakness with its double standard lock-out practices in order to coerce a settlement.

(B) enumerated or analogous grounds:Are there one or more enumerated or analogous grounds? Yes, there are.The first and most obvious is the blatantly un-neutral government attack on labour withthe s.94.2(1) of the Labour Code. This section becomes all the more powerful in aservice industry where the bottom-line dollar effects of a locked out labour force isminimal or even negligible because the lock-out's impact on the functionality andservice are relatively small for an extended period of time. See Exhibit 15.16 (Tab R-8).But where the employer is able to stentoriously advertise for and hire very substantial

numbers of uninsurable 'contract' scab labourers from all across North America, and byexporting their employees' work to call service representatives in the Philippines, notonly are the grounds blatantly enumerated, but they span two and perhaps threecontinents. See Exhibit 16 (Tab R-6) for the extent the employer used the power of94.2(1).

The second analogous ground has to do with the conspicuous failures of the CIRB torule in a timely manner on issues important the union, while making quick andcontradictory rulings that clearly benefited the employer at the expense of the


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employee. (Refer to the various rulings I cite in my argument Exhibit 15 and,specifically the failure of the CIRB to rule on TELUS's use of scab labour, Exhibit 16

(Tab R-6).)

The third demonstrated analogous grounds of discrimination is with the manner inwhich the media clearly picked sides in the dispute and sided with the government in itspro-corporatist, break-the-union efforts. I refer, in particular, to Fazil Mihlar, senioreditor ofThe Vancouver Sun, who praised TELUS for having broken the rules of labournegotiation protocol, before he libellously disparaged the union. When I formallycomplained to the BC Press Council of the Mihlar's editorial lie, Mihlar admitted fully,and apparently with some pride, at having knowingly libelled the union with an out-and-out mis-statement of fact. Not only did this senior editor fully admit that he had notonly knowingly misstated the facts, but also he rationalized it away because of his

"considered judgement" (see Exhibit 20.7 (Tab R-13)). And while this by itself isgrounds enough to establish another manner in which labour is distinguished, the depthof the anti-labour cant of the media was fully displayed when the BC Press Councildismissed my complaint against an admitted liar without a single reference oracknowledgement of either this senior editor of a large and influential newspaper lyingin his editorial or having admitted in writing to having enough considered judgement totransform a lie into a truth. See my exhibits 20.7-8 and 21.1.

This example of the behaviour of the media is not unique. In my appeal to the Boardof Referees I include a concrete example of the media's ability to affect or benddemocracy towards its anti-labour/pro-corporatist ends, in their ability to publish withimpunity deliberate and purposefully misleading, even fraudulent, information. Andyes, it was in the media that I learned of the fraud, but not until long after the affectsthat disinformation had had on the very tight provincial election were made manifest.In that example, the media deliberately misrepresented the BC Teachers Federationnewsletter as a 'secret document' with plans to disrupt the Liberal government and itsagenda. See Exhibit 20.24.

A fourth analogous ground is how different government agencies differentiate between'labour' and others. At this time I would like to introduce additional evidence. Theexhibit is a letter from the BC Government's Ministry of Labour and Citizens' Services.It denies an employee from the right to seek back-wages from the employer after thecompany went bankrupt at about the same time that the owner of the companysuffered an ultimately fatal stroke. See Exhibit 23 (Tab R-7). The reasons for thedenial are, from a democratically equal-rights perspective, astounding:

... As a preliminary finding, I would conclude that the termination compensation(severence) issue is not payable. The reasons are that the provisions of Section65.1(d) of the Employment Standards Act state that it is not payable 'under an


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employment contract that is impossible to perform due to an unforeseeableevent or circumstance." As the owner and sole Director of the company is

incapacitated and hospitalized due to a stroke or vascular accident and wasincapable of providing you with written working notice of termination, I wouldfind that those provisions apply in this situation. Tab R-7.

With this law, labour would be denied back wages out of recoverable assets if, forexample, an accountant defrauded the company. It would seem, however, thatcreditors, the government and shareholders would be given access to whateverliquefiable assets remained. Labour, again, is treated differentially from otherdistinguishable groups, and detrimentally.

A fifth example of differential treatment is demonstrated by TELUS's AFI agents'

impunity from either the press or the law for the abuses of power they exercised underTELUS's direction in order to help break the union. And while, for the purposes of thishearing they are anecdotal, there is in fact a long string of union employees who werecharged and fired by the company. Unfortunately, without an enquiry into this event,there is no way of demonstrating that the union-breaking agents of TELUS had, underguidance and direction from TELUS, chosen union undesirables to be set-up and fired ina manner that allowed TELUS to circumvent the section of the labour code that dis-allows employers from firing union activists. That the abhorrent string of anti-labourpractices and abuses of power are not something deemed press-worthy by the media,nor democratically interesting from a societal perspective, is additional evidence of thedistinguishably state 'labour' has in this society. The media, the law and society hadample opportunity to be informed of TELUS's abuses of power, because the union tookthem to court on many occasions and in more than a few of those TELUS wasreprimanded for their behaviour. Instead all turned a blind eye to TELUS's strong armtactics.

A sixth demonstrated grounds of discrimination was in the general failure of the policeand crown counsels to see that both parties were treated equally before the law, oreven to see that the laws of Canada were enforced when either TELUS or the AFIagents violated them. For example, the AFI agents set up cameras on the busy streetsof downtown Vancouver to ensure that the violent and dangerous union didn't getfrisky. There was no enforcement from the city police or crown counsels to forceTELUS's private police force to stop infringing on the rights of the citizenry to be notfilmed by a private organization. When TELUS proceeded to bribe the unionized labourforce in Alberta with IPods and lucre, once again there were no signs from either thepolice or crown counsels that something illegal had been undertaken to help underminethe union. As an amusing statement of the effectiveness of TELUS's bribery plan, theunion president, Bruce Bell, publicly announced that the very tight failure of the firstratification vote was in no small part because the scabs in Alberta who were raking in


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TELUS's gifts and overtime pay, had voted against that first ratification. There appearsto be some truth to this, as TELUS revoked the overtime leading up to the next vote,

and that vote saw a good majority accept the enforced contract. On the other hand, ifthe union membership was deemed to be impeding the flow of traffic, even slightly, theunion was taken to court. When cable was stolen, the media and TELUS vociferouslydenounced the union, but their apology remained mute when the thieves weredetermined to be private entrepreneurs.

In respondents' pars 22 and 23, the respondent cites Delisle v. Canadaand Dunmoreto prove that professional status does not constitute analogous grounds. Therespondent has missed the mark, here, because the respondent has mistaken a tree forthe forest. A labourer with a professional status is still a labourer. The fact that I caneven write that sentence, and have everyone in this room understand my meaning,

makes clear that the labourer is distinct from the professional RCMP officer. Therespondents argument, here, is off the mark, and therefore irrelevant to my case. Tofurther demonstrate this, I can say phrases like "the exploitation of labour", or "slavelabour", or "labour market", and each and everyone here understand clearly what Imean. What happens, however, when I say something like "corporate exploitation" or"managerial abuse"? In these two phrases, we understand clearly that the abuser isthe corporation and management. However, in the former, we understand clearly thatit is labour that is being exploited. The distinction is clear. Labour is a distinguishablegroup, and is recognized by even this use of common English, to be in a position to beexploited, while the corporate employer is in the position to do the exploiting.

The Supreme Court of Canada has discussed this issue when it affirmed that workers inlabour disputes have suffered historical disadvantage. Specifically, the vulnerability andpower imbalance of employees compared to that of their employees was discussed inWallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 (Rebuttal Authority 4),when the Court stated:

92 This power imbalance is not limited to the employment contract itself.Rather, it informs virtually all facets of the employment relationship. In SlaightCommunications Inc. v. Davidson, [1989] 1 S.C.R. 1038[Rebuttal Authority 5],Dickson C.J., writing for the majority of the Court, had occasion to comment onthe nature of this relationship. At pp. 1051-52 he quoted with approval from P.Davies and M. Freedland, Kahn-Freund's Labour and the Law(3rd ed. 1983),

at p. 18:

[T]he relation between an employer and an isolated employee or workeris typically a relation between a bearer of power and one who is not abearer of power. In its inception it is an act of submission, in its operationit is a condition of subordination. . . .


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[Of course Kahn-Freund is doing no more than restating what many have

written, including Adam Smith, who two hundred and thirty years ago, wrote:

It is not, however, difficult to foresee which of the two parties must, uponall ordinary occasions, have the advantage in the dispute, and force theother into a compliance with their terms. The masters, being fewer innumber, can combine much more easily; and the law, besides, authorises,or at least does not prohibit their combinations, while it prohibits those ofthe workmen. We have no acts of parliament against combining to lowerthe price of work; but many against combining to raise it. In all suchdisputes the masters can hold out much longer. A landlord, a farmer, amaster manufacturer, or merchant, though they did not employ a single

workman, could generally live a year or two upon the stocks which theyhave already acquired. Many workmen could not subsist a week, fewcould subsist a month, and scarce any a year without employment. In thelong-run the workman may be as necessary to his master as his master isto him, but the necessity is not so immediate (Smith, Adam. An Inquiryinto the Nature and Causes of the Wealth of Nations, Bk. I, Ch. 8, "Ofthe Wages of Labour", par. 12). I have cited this from my originalappeal, Exhibit 15.20 (Tab R-18):]

93 This unequal balance of power led the majority of the Court in SlaightCommunications, supra, to describe employees as a vulnerable group in society:see p. 1051. The vulnerability of employees is underscored by the level ofimportance which our society attaches to employment. As Dickson C.J. noted inReference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313,at p. 368 [my emphasis].

But to further demonstrate that labour is distinctive it is possible to go to university andtake a course called, for example, "Labour Market Economics." A text for that book iscalled Labour Market Economics: Theory, Evidence and Policy in Canada, by MorelyGunderson and W. Craig Riddell. [Toronto: McGraw-Hill Ryserson Ltd. 1988 2ndEdition ISBN: 0-07-549079-X.] From the preface:

... the emphasis of this book is on the economic aspects of the market forlabour. For some persons, such an emphasis may appear misguided, given thevarious peculiar characteristics of the labour market a variety of factors withgoals that often conflict; an abundance of sociological, legislative andinstitutional constraints; and a complex price (wage) structure with moralovertones because of the human element and because wages are often calledupon both to allocate labour efficiently and to curb poverty. Because of theseand other peculiarities, some have argued that the labour market is


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fundamentally different from other markets and that, therefore, economics islargely irrelevant or at most can play only a minor role in analyzing labour

market phenomena.Although there are important differences between labour markets and manyother markets and they are what makes labour economics so interesting abasic theme of this book is that these differences are ones of degree and not ofkind. Rather than making economics irrelevant to the analysis of the labourmarket, these characteristics make economics even more relevant inunderstanding some of the basic underlying forces and in analyzing the impact,and the reasons for the emergence, of a variety of sociological, legislative, andinstitutional constraints. In essence, the complexity of the labour market makesa basic theoretical framework even more necessary in order to understand thebasic underlying forces, and not miss the forest for the trees (xvii).

Finally, I would like to pose the following questions. Why does the Canadian LabourCodeexist? Or, perhaps more to the point, why did a government of yore put intoexistence a labour code? Was it a) to protect the employer from labours' abuses ofpower, or b) to protect labour from the employers' abuses of power? Exactly! The veryexistence of the Labour Code makes it very clear that labour is a group that is definableand at a position of disadvantage in the society, so much so that it needs laws toprotect it from the abuses of employer power. (The fact that there are sections of theact that protect the employer does not vitiate that in balance the Canadian Labour Codeis written to protect the labourer. Nor does the existence of anti-labour sections of theact negate the Labour Code'sgenesis or need.)

(C) does 36.1 have a purpose or effect that is discriminatoryAs to whether s.36.1 has a purpose or effect that is discriminatory within the meaningof the equality guarantee, clearly that is the case. I again refer to Hills. In Hillsthe

judges argue that 36.1 fails to be neutral because it does not distinguish betweenstrikes and lock-outs. That means, quite simply, that the locked out employee can beat a considerable disadvantage than that of a striker during a labour dispute, despitethe ostensible purpose of 36.1 to ensure EI neutrality. In the TELUS dispute, forexample, the union and its membership clearly recognized that the nature of thebusiness put them at a significant negotiating disadvantage with their employerbecause the withdrawal of labour would have very little short or medium term effect onthe company's bottom line. See, as evidence of this, Exhibit 15.16 Tab R-8. By itsfailure to see this distinction, s.36.1 ensures that a distinguishable group, theperniciously locked out labourer, is being hurt by the law to the advantage of anothergroup, the employer. Furthermore, the locked out employee will often be at adisadvantage even compared to striking employees. If the law only benefited thestriking labourer more than it did the locked out labourer, it is unconstitutional.


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However, 36.1 not only benefits the striker more so than the locked out employee, iteven more powerfully benefits those in society who have already an excess of economic

and societal power oligarchic big business. See Hillspars 46-48 (Tab R-5). It isinteresting to note that the CEO of TELUS was rewarded for locking out 'his' employeesfor five months in 2005 with a compensation package, for 2005, that was in excess of14 million dollars.

SummaryFor these reasons I maintain that section 36 of the EIA infringed on my equality rights,and that the questionnaire did infringe on my freedom of conscience and association,and that under the circumstances was indeed cruel treatment. The Respondent's casehas not proven that my appeal needs to be dismissed.

I would like to close by citing from my appeal:

To remain neutral between two opposed parties requires understanding of thenature of both parties before neutrality can be considered, let alone achieved.Neutrality is not achieved by the blind enforcement of deaf words. Suchbehaviour is antithetical to a democracy because blinkered enforcement of anylaw subjugates the citizens hurt by that law to the state and belies that citizenbeing a participating member of a free democracy. Justice Wilson says thispowerfully 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 theDepartment of Philosophy and Psychology at Birkbeck College, Universityof London, in Guide to the Philosophy of Morals and Politics (1938), therole of the state in a democracy is to establish the background conditionsunder which individual citizens may pursue the ethical values which intheir view underlie the good life. He states at p. 801:

For the welfare of the state is nothing apart from the good of thecitizens who compose it. It is no doubt true that a State whosecitizens are compelled to go right is more efficient than one whose

citizens are free to go wrong. But what then? To sacrifice freedomin the interests of efficiency, is to sacrifice what confers uponhuman beings their humanity. It is no doubt easy to govern a flockof sheep; but there is no credit in the governing, and, if the sheepwere born as men, no virtue in the sheep.


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Professor Joad further emphasizes at p. 803 that individuals in ademocratic 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 entailshis right to the full development and expression of his personality,all other rights and claims must, the democrat holds, besubordinated. I do not know how this principle is to be defendedany more than I can frame a defence for the principles ofdemocracy and liberty.

Professor Joad stresses that the essence of a democracy is its recognitionof the fact that the state is made for man and not man for the state(p.

805) [my emphasis].

As it has been written, and as it has been enforced, 36.1 of the EIA is a blind law, andits blinkered administration makes it an unjust law, suitable for sheep and not people.

Response to Respondent's Argument

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Transcript of Response to Respondent's Argument