Dillon vs. Her Majesty the Queen: My morning in a Canadian Federal Court of Appeal.

Canadian federal court of appeals coat of armsI raised question in the mind of a judge in a federal court of law today – winning his attention and commitment to do more research on my case  — for it was Dillon vs. the Queen today as my fight on a misinterpreted law and human rights/constitutional law issue hearing came before the Federal court system.

There is a part of me who is quite loathe to share these details on my blog for getting my professional life mixed up in my personal life.  Well – I’m gamefully employed now and had a great small business year this year so.. here comes me opening the komono.   I need to add these details to my blog which gets pretty decent reach and seo so that others in a similar situation understand how to appeal like me and find my arguments.  This issue is much broader than me and I press on not expecting personal benefit but to change legislation and create new precedents.  

Some background – Back in 2008, I had the unfortunate experience to be laid off in my twelfth month of maternity leave – effective on my intended first day back to work.  Our Employment Insurance system considers, in this situation, a new mother’s EI benefits to be exhausted as it uses maternity leave in its calculations for working insured hours. 

To be clear, my former employer – who was indeed greatly affected by the great recession of ’08 – is not at all part my scrutiny.  We had an amicable and generous separation – within which I had to pay out EI premiums but none of which was considered ‘working hours’.  I sought EI so that I could use it to bridge getting back into the workforce and fund my entrepreneurial ventures (which is completely legit).

But new moms being laid off came under strong fire in 2008 – 2009 as many women were suddenly denied EI.  Indeed there is a dead Facebook group (as the NDP is not managing it) with nearly 1200 women in similar situations.   [note:  I started a new facebook page  ‘make ei fair to parents’]

There is also an excellent article “EI Unfair to Moms Let Go On Leave” by Ed Canning which outlines how the EI rule results in “adverse effect discrimination” for new mothers laid off.  I give Ed credit for giving me the basis of my original appeal.  Worthy of note that Maria Minna, my liberal MP, has been fighting on EI reform.  We’ve discussed my case and she has been including this situation in her request for reform (the documents are quite extensive and I have a copy if anyone needs it).

Back to the court situation – after being denied EI – I first appealed to a board of referees in October 2009 (it took 4 – 5 months to get a hearing) and my claim was denied on the basis that they could only interpret the law as it stands and not based on human rights – however sympathetic my circumstances.  I appealed again now to the office of the Umpire.  And this is the meeting I had today – one full year later.

Here was my appeal arguments:
First – what is in question is the lack of accumulated insured hours during my qualifying period.  I needed 560 hours (roughly 3.5 months) and my ‘qualifying period’ included 6 months of severance (during which I paided EI premiums) and 5 months of approved maternity leave.

  1. Having paid EI premiums, I expect some kind of contract or fiduciary duty.  But EI collects but does not grant insured hours.  Kinda silly.
  2. The appeal board has favoured the interpretation of regular benefits calculation over the underlying purpose of special benefits provision (maternity leave).  This is a federally sanctioned period where new moms are not ready nor able to work.  I felt the two EI rules were working against each other.  That EI should not have used my special benefit period as part of my qualifying period.  All of which caused undue hardship.
  3. Quebec is different.   I learned this from Maria Minna’s recent reform work.  Quebec has a Quebec Parental Insurance Plan which protects new moms in a similar situation.  They do indeed get EI since the special benefit period is not used in regular benefit calculations.  They are the only province to do this.  Here is a federal offering not providing the same benefits from another province.  I don’t know how strong this case is but it was worth mentioning.
  4. And – I had made a very strong case earlier using Ed Canning’s well described work about the adverse effect discrimination based on gender and families.  The first appeal to the board of referees indicated that they did not have the authority to consider human rights violations.  I raised these issues to the Umpire in case he could apply human rights and constitutional law principals in court.

Results
Well – the entire appeal process to the Umpire was very pleasant and civil.  The Umpire (judge) listened to my case and decided that there might  be grounds on an extension of the qualifying period back before my special benefits started.  That someone who is convicted in prison can have their qualifying period extended to before their conviction and so EI has done this.   I had raise question in his mind and, as he put it, you’ve given me some work to do.   A second lady in the court – who was adding some summation commentary also did research on my appeal docket.  She presented two cases whereby the board of referees were found to have errored – that they could indeed consider human rights violations and so she presented this to the Umpire.

I should have a decision in four to six weeks.

If you find yourself in a similar situation – I welcome your connection.  I’ve given a lot of detail here so that others might fight this situation as well.

Laurie.

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2 thoughts on “Dillon vs. Her Majesty the Queen: My morning in a Canadian Federal Court of Appeal.

  1. andrea

    i am in this exact situation and would love to know the outcome and vwould really love some help. My appeal date is September 11

    1. Laurie Dillon Schalk Post author

      Andrea –

      You left a comment on my blog – re: appealing your denied EI.

      Assuming you were denied EI based on a lack of insurable hours… take a look at how inmates (prison) are allowed to have their ‘insurable hours’ pre-date their prison term. You need to demonstrate that there is discrimination – which means someone else gets a privilege in the same situation. You have to declare this in your first appeal. I did not get past the third appeal but if I did more work on inmates, I think I could have taken this further.

      Check this out –
      http://openparliament.ca/bills/41-1/C-316/
      I hope this helps you. Let me know!

      Laurie Dillon-Schalk

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