There has been a good deal in the news lately about the current legislative amendments to the Employment Insurance Act and how it will impact seasonal workers and the effects that will ultimately have on the economy of the province. But hidden on page 196 of the 400 page Budget Implementation Bill is an amendment that has not received as much publicity. Effective April 1, 2013, this amendment will replace the Employment Insurance “Board of Referees” with a new appeal system know as the “Social Security Tribunal.”
The government claims the current appeal system is confusing, costly, slow and inefficient. Nothing could be further from the truth. Having had the privilege of serving as a member of the EI Board of Referees for over 35 years (1974-2010), I can speak on this matter with some authority.
The Board of Referees appeal system has been in place for over 65 years and is one of those unique pieces of legislation where both labour and business agree that the legislation works well. The Board of Referees are established in communities across Canada and are comprised of three members; an employee representative appointed by labour, an employer representative appointed by business and a Chairperson appointed by the government, which is a political appointment, depending on which party is in power. These appointees are called upon once or twice a month to meet and hear appeals from unemployed workers who are not satisfied with the decision made concerning their EI claim for benefits.
In New Brunswick, there are 5 such Centres—there are approximately 80 across Canada—that have established Board of Referees; Edmundston, Bathurst, Moncton, Fredericton and Saint John. This allows the unemployed worker to appear in person before the Board of Referees and to make his/her case as to why their claim for benefits should be allowed. Conversely, the employer may also appeal if they feel the worker has unjustly received their benefits. All appeals must be heard within 30 days from the date of filing. The Board of Referees makes their decision on the day of the hearing and the claimant will receive the results, along with reasons for the decision, within 7 to 10 days following the day of the hearing. All this is with no cost to the unemployed worker.
The hearings are very informal. As lawyers are very seldom part of the process, the system is not legalistic. All workers are advised at the start of the hearing that the members of the Board of Referees do not work for the government and are simply local citizens who meet once or twice a month to hear appeals. The unemployed worker is entitled to have whoever they want with them, either as a representative or simply for moral support. Following the presentation by the worker, the Board members will usually ask the worker questions concerning the case. Following the hearing, the Board will discuss the evidence presented, along with the case law, and will make their decision within the meaning of the EI Act.
A day of hearings usually consists of six cases. In New Brunswick, there are approximately 1000 appeals heard annually. In Canada, the number of appeals heard exceed 26,000 annually. The records indicate that the unemployed worker is successful, in whole or part, approximately 25 percent of the time. Although the Board is comprised of labour and business representatives it has been my experience that the process is not an adversary one. The vast majority of decisions are unanimous decisions. It is also worth noting that many times the Chairperson will rely on the expertise of the other Board members.
I suggest we would be hard pressed to find anyone, outside the Harper government, that would call this system confusing, costly, slow and inefficient. This, perhaps, would better describe the new government bureaucracy that is being put in place. The new Social Security Tribunal will consist of 74 full-time government bureaucrats half of whom will hear EI appeals. The other half will hear Canada Pension Plan and Old Age Security appeals.
The first problem with the Social Security Tribunal is those who fund the program—business and labour—are removed entirely from the process. The second problem is unemployed workers will have very little confidence in an appeal system where one government bureaucrat is reviewing the decision of another government bureaucrat. The third problem is that under the new system, it will be almost impossible to have face to face hearings, making it more difficult for workers to properly present their case and almost impossible for the adjudicator to assess the credability of the unemployed worker.
Also, the adjudicator will not likely be familiar with the local area or understand the local labour market conditions. It is appalling to suddenly discover that the role of ensuring that the EI Act is being properly administered is being removed from the major stakeholders in the local areas and being turned over to a new government bureaucracy. Only time will tell, but it is difficult to comprehend how only 37 adjudicators can handle over 26,000 appeals in a timely fashion.
These amendments are being imposed arbitrarily by the Harper government without any input from those who fund the program. Ken Georgetti, president of the Canadian Labour Congress, complained that the government had used its giant omnibus budget bill to force through a number of changes to the EI system and it did so without consulting the stakeholders, stating “the results have been shockingly bad.”
Corinne Pohlman, a spokeswoman for the Canadian Federation of Independent Business stated, “We certainly aren’t really sure where this idea is coming from. We certainly feel the EI Board of Referees was working well. It allowed for more of an informal process at the local level that allowed people to feel like they were getting fairly heard by people in their community.”
University of Ottawa law professor, Lucie Lamarche said, “We’re losing a non-judicial space, easily and quickly accessible and free where people can retell their story in a language that they understand.” Lamarche predicts more frustration leading to fewer appeals and fewer payouts.
I fear these recent amendments, taken together, have driven the final nail in the coffin of the EI program, a program that has been so important to so many Canadians for so many years.
George Vair is a former president of the Saint John District Labour Council and a former vice-president of the New Brunswick Federation of Labour. He served on the EI Board of Referees in Saint John for over 35 years.