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The new EI appeals process isn't working. Here's why.

Photo: Albert Lynn/flickr

Last weekend, Quebec unions and activists issued a joint statement on the appeals process in employment insurance, calling on Trudeau to review the appeals process. The 2012 budget removed part-time panels of three community representatives -- one labour, one business, and one government, and replaced them with full-time adjudicators working on their own. The joint statement contains some very good information about why we think the new appeals process isn't working, so I'm posting it here, in English.

Statement on challenging Employment Insurance decisions, Fall 2016

The unemployed are entitled to neutral and accessible recourse. The right to challenge is fundamental and ensures the legality of decisions made by public authorities.

For 72 years, the boards of referees and umpires were tasked with settling Unemployment Insurance disputes between the authorities and citizens. These administrative tribunals had exclusive jurisdiction over the interpretation and implementation of the Employment Insurance Act and made sure that it was implemented in a reasonable and adequate way by the Employment Insurance Commission (EIC). They offered a simple, fast and accessible recourse to citizens dissatisfied with decisions. Appellants were first heard in person within approximately 30 days by a balanced panel of three persons from the community.

Without consultation or a supporting impact assessment, the Stephen Harper government -- under its gutting of Employment Insurance -- abolished boards of referees and umpires, created the Social Security Tribunal (SST), and imposed a mandatory administrative review. This new complex, slow and dehumanizing decisional process drastically reduced access to justice for all unemployed citizens as a whole, and by the same token, their ability to affirm their rights.

Three years after this new method of challenging Unemployment Insurance decisions was imposed, the Mouvement autonome et solidaire des sans-emploi (MASSE), Québec central labour bodies (FTQ and CSN) and unions, the Canadian Labour Congress and many protectors of the rights of the unemployed throughout Québec and Canada conclude that there has been a decline of the quality of administrative justice that clearly violates the right of the jobless to be protected against unemployment, as witnessed by the following facts and figures*:

  • Processing time has skyrocketed, which discourages the unemployed from appealing.

    • Average case settlement time for the General Division: 262 days.
    • Average case settlement time for the Appeal Division: 395 days.
  • The number of appeals has decreased very significantly.
    • Boards of referees heard approximately 20,000 appeals per year, compared with approximately 3,500 filed with the General Division of the SST.
    • The Appeal Division registered a 74 per cent decrease in the number of appeals filed.
  • Administrative review -- now mandatory -- is an extra step that makes challenging Employment Insurance decisions more complex and longer, which discourages people from moving forward in the SST process. Furthermore, the administrative review is carried out by an entity that is not neutral.
    • At the stage of administrative review, appellants do not have access to their file.
    • The reviewed decisions are influenced by the pressure brought on the officers of the Employment Insurance Commission, which are required to follow directives that are heavily tainted by cost-benefit objectives.
  • Appellants have lost their ipso facto right to appeal since summary dismissal was imposed, and they must now obtain permission to appeal. These new procedures violate the right to be heard.

    • Summary dismissal has too often been misused. Indeed, half the challenges of summary dismissal decisions were resolved in favour of the appellants.
    • In nearly half the cases (195 out of 427), permission to appeal to the Appeal Division of the SST was refused to the appellants.
  • The SST only publishes about 3 per cent of the decisions of the General Division, which creates an imbalance between the parties since the Commission receives all decisions.
  • The process to obtain permission to appeal is too complex for a person who is not represented by a lawyer, especially if the high level of functional illiteracy (53 per cent in Québec) is taken into account.
  • Decision-makers are now free to choose between various types of hearings while the choice should be made by the appellants. The choice is guided by, among other things, cost reduction objectives that are hardly compatible with real justice.
    • The in-person hearing is now marginal (16.4 per cent of General Division hearings and 19.8 per cent of Appeal Division hearings) and the vast majority of hearings (68.5  per cent) are carried out by telephone.
    • Videoconferences and conference calls can hamper consideration of the credibility of the appellants, contribute to dehumanize the process, notably by reducing the empathy that the decision-maker may feel, and increase the stress level of the appellants.
    • Decision-makers may now hand down decisions on the record (without holding a hearing), which negates the right to be heard; Appeal Division decision-makers did so in over half the cases (55.5 per cent) in 2014-2015.

This form of justice must be efficient since it has a direct impact on the daily life of the unemployed. We believe that the government must make every effort to ensure that disputes are settled as soon as possible, in view of the very precarious situation of the appellants. Any undue delay or complication of the process contributes to make the unemployed more likely to renounce their right to benefits, rather than follow a long and complex challenge process.

Since those are severe infringements of both access to justice and procedural fairness and the right to be protected against unemployment, the right to freely choose a suitable job and the right to social security, we demand the reestablishment of a fast, effective, fair and humane process respecting the human rights of the unemployed for the settlement of Employment Insurance disputes. We consequently unite to demand the establishment of a tripartite tribunal, the setting up of a process for the selection of its members based on the criteria of neutrality, knowledge of local realities and competency, the abolishment of the mandatory nature of the administrative review and the adoption of procedural rules ensuring that this tribunal respects natural justice.

*Informations tirées d’un document produit par le Mouvement autonome et solidaire des sans-emploi (MASSE), Le Tribunal de l’insécurité sociale, une atteinte aux droits et à l’accès à la justice – Bilan, octobre 2016.

Photo: Albert Lynn/flickr

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