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IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim by GUY DUPERREAULT

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IN THE MATTER of an appeal to an Umpire by the claimant from a
decision by a Board of Referees given on January 30, 2006 at
Burnaby British Columbia

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APPELLANT'S REBUTTAL OF RESPONDENT'S
MEMORANDUM OF FACT AND LAW

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

Introduction

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

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

Rebuttal

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

Valois dates from the year 1986. Additionally, Carrozella dates from the year 1983.
Both of these cases stand for the proposition that: 'participating in a labour dispute', in
accordance with the meaning of that under section 36 of the EI Act, has been adopted
by the Courts as meaning: 'a refusal to cross, or a failure to attempt to cross a picket
line'. See the case of Jeanette Black 2001 FCA 255 (Rebuttal Authority 1). If an EI
applicant refused to cross a picket line or failed to attempt to cross a picket line, then
that person is deemed to have 'participated in a labour dispute', and benefits are
denied.

It is for this evaluation, presumably, that I was asked if I had tried to cross the picket
line. 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 original
application 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. See
exhibits 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 the
affirmative, gave the name of my union and the number of my local. With these
answers I have unequivocally stated my participation in the labour dispute by the
nature 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 Operating
Engineers...." In this case the questionnaire may be seen to be of some value, as it
was not his union that was striking, but another union. But it was of very limited value
because his situation led to a great deal of court time to try and decide whether or not
the denial of claims would be upheld. And I can see that, undoubtedly, in many if not
most cases the answers on this questionnaire would not, regardless how the applicant
responded to them, avert denials and appeals. It was made clear in Valois that proof of
intimidation 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 the
lock-out situation I was experiencing, it was not only irrelevent, but cruel only in part
because of its indeterminacy.

Additionally although Valois and Carrozella are common law decisions of the Courts, the
case of RWDSU v. Dolphin Delivery (1986) 2 S.C.R. (Rebuttal Authority 2) determined
that although the Charter does not apply directly to the common law, the Charter has
an indirect affect on the common law. In Dolphin the Court stated: 'the judiciary ought
to apply and develop the principles of the common law in a manner consistent with the
fundamental 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 of Valois and
Carrozella which requires an applicant for EI to attempt to cross a picket
line in order to obtain an EI benefit,

violate the Charter?

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

In the case of Canada (M.E.I.) v. Carrozella, it is easy to see that the questionnaire
was 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 Carrozella does go to the heart of why the questionnaire infringes on an individual's
2a and 2d rights. It, and the rulings in Valois and Carrozella, argue that attempting to
cross a picket line is enough to become, or at least a necessary condition before
becoming, eligible for benefits. It is that 'attempting' that goes to the spirit of freedom
of conscience. If in good conscience I support the idea that a vibrant middle class is
necessary for a healthy society, for example, but have been put into dire straights by an
employer attempting to destroy that middle class with, for example, contracting out to
near slave labour markets and mandatory overtime clauses, then the questionnaire's
asking me if I attempted to cross a picket line is also asking me if I am willing to give
up my conscience in order to receive benefits.

I think that the best way to describe the inadequacy of the question is to pose it
differently. Instead of asking if I attempted to cross a picket line, what could have
been asked was "Was there evidence that those picketing would block your entry
and/or threaten or intimidate you if you attempted to cross the picket line?" With this
question comes a completely different emotional response. And with this kind of
question one could imagine an unscrupulous but conscientious union organizing itself to
be threatening and intimidating to its members in order to show that the membership
deserves to be exempted from a denial of benefits. This clarifies why the question is
inappropriate. And posed this way, it also becomes crystal clear why the questionnaire
will 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 an
employer who allowed, encouraged and bribed its Albertan unionized labourers to cross
the picket line as well as with guarantees of safe passage and their hired AFI goons on
hand to push into the cement the faces of the mostly peaceful picketers. (See new
evidence documents Tab R-20 and Tab R-21.) In this case the picketers were being
intimidated, and not those wanting to cross.

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

This leads to an interesting observation, one that renders the questionnaire even more
useless: 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 TELUS
chose not to honour the existing labour contract and refused to allow me to report for
work. And so I manned an information picket to try in a very limited way to
disseminate the truth about the lock-out that the media generally refused to report
except inaccurately.

What is cruel is that the act as it is currently written makes even this circumstance
irrelevant 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 denied
benefits because as long as s/he is in good standing with the union, by that standing
s/he will be directly interested in the labour dispute and therefore "deniable."

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

And so, as the EI act stands, the path to forsaking one's conscience is tangibly made as
the already wealthy CEO pays himself 14 million dollars after having starved out his
employees month after month after month. Under these circumstances one's freedom
of conscience is, in effect, under attack. EI act s.36.1 and its concomitant
questionnaire 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 just
as easily have been asked within the original application for benefits, instead of under
separate cover. But regardless the refinement of the questions, entitlement to benefits
under 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 a
related meaning to 'religion'... in that they both describe the location of profound moral
and ethical beliefs, as distinguished from political or other beliefs which are protected
by 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 that
contracting 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 these
deeply felt thoughts are an expression of my conscience, as informed by my beliefs and
critical observations of history? For some the belief in democracy is so slight that it
neither informs nor tempers their conscience: for example, those who feel justified in
contracting 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 EPZ
workers are forced to work days on end with few breaks, often in fire trap buildings and
with little or no environmental controls. I assure you, that that is not the situation in
my case. My conscience has been affronted by the press's, the courts, and the
politicians pandering to their oligarchic lords while quietly here, sneakily there,
undermining whatever few laws existed that protected labour from the greed that saw
children's toes burned with fire to force them into flues not more than two centuries
ago; and which, today, sees a similar greed selling, for example, children's bodies for
the 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 quoting
par. 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. I
disagree. In fact, so does Madame Justice Wilson in R. v. Morgentaler, who was
quoted in R. v. Roach a 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 their
cited paragraph 45 and 46, I will quote them in their entirety, and expand it to include
paragraph 47 (Tab R-16):

45. There is little authoritative jurisprudence on freedom of conscience under
paragraph 2(a) of the Charter. However, the concurring reasons of Madame
Justice 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. She
stated:

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

It seems, therefore, that freedom of conscience is broader than freedom
of religion. The latter relates more to religious views derived from
established religious institutions, whereas the former is aimed at
protecting views based on strongly held moral ideas of right and wrong,
not necessarily founded on any organized religious principles. These are
serious 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 in
religion in order to rely on freedom of conscience under paragraph 2(a) of
the Charter. For example, a secular conscientious objection to service in
the 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 both
describe the location of profound moral and ethical beliefs, as
distinguished from political or other beliefs which are protected by
paragraph 2(b).

46. In my view, with respect to both freedom of conscience and freedom of
religion, the appellant will have to show that the burden imposed on him by the
oath 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, at
page 759:

The purpose of s. 2(a) is to ensure that society does not interfere with
profoundly personal beliefs that govern one's perception of oneself,
humankind, nature, and, in some cases, a higher or different order of
being. These beliefs, in turn, govern one's conduct and practices. The
Constitution shelters individuals and groups only to the extent that
religious 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 of
interfering with religious belief or practice. In short, legislative or
administrative action which increases the cost of practising or otherwise
manifesting religious beliefs is not prohibited if the burden is trivial or
insubstantial.

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

47. A similar analysis should be employed in assessing any interference with
freedom of conscience. This would require a claimant to show that his or her
conscientiously held moral views might reasonably be threatened by the
legislation in question, and that the coercive burden on his or her conscience
would not be trivial or insubstantial.
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This is an extremely important and serious issue to me. To demonstrate to what
extent, 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 that
my 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 extant
and living cheerfully within my so-called democracy. That questionnaire was extremely
cruel, under the circumstances, both to me in my immediate situation by tantalizing me
with 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 have
been set up to benefit oligarchic big money and to abet them their subjugation of
labour.

I would also like to re-iterate that s12 is blunt: "Everyone has the right not to be
subjected to any cruel and unusual treatment or punishment." The question treated
me, under the circumstance, cruelly.

In its efforts to subjugate its labour into accepting its imposed contract, TELUS hired
AFI thugs to protect its assets. Whether true or not, the grapevine was filled with
stories of AFI thuggery, and associated TELUS firings of select members of its labour
force. While these grapevine stories would need an enquiry into TELUS labour-
management practices during the five month dispute (nick-named the JASON by the
employees in deference to it having spanned July, August, September, October and
November), I saw for myself the AFI agents harass an innocent bottle collector at 10pm
one Sunday night because he had inadvertently crossed into the not well delineated
property of TELUS's Glenlyon offices in Burnaby. Within minutes four 'guards' had
surrounded 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 — but
neither I nor anyone else with me on the picket line that night had the slightest notion
that reporting the incident to the police would be of any value. Why not? Because
RCMP officers made regular visits to share conversation, coffee and donuts with the
TELUS AFI agents – many of whom were ex-cops. Eventually the frightened bottle
collector revealed some form of identification, and with a laugh the goons wished him a
good night. That image of my democracy is seared into my consciousness, and further
informs my conscience. This questionnaire asked me to attempt to cross the picket
line, which was tantamount to supporting TELUS's efforts at intimidating its labour (and
citizenry!), 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 fully
understand and recognize what TELUS's lock-out of the BC employee meant. The
picket 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 would
have succeeded. I would have also been quite likely, and justifiably, jeered and
shamed, but my physical well being would not be threatened. TELUS assured us all
that Albertan's willing to cross would be securely transported by their thugs, which they
were, as were the scabs hired from other provinces, the U.S. and Mexico. So, if I had
attempted to cross the picket line, and had succeeded, would EI have given me benefits
when TELUS once again refused to allow me to work after having me carried off the
premises 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 shipped
me to Alberta for my own protection, while my partially disabled wife was left at home
to struggle with legs that aren't working? Would it have been cruel to succeed in
crossing the jeering picket line, but at the expense of my freedom to associate with
like-minded, peaceable, law abiding, taxpaying, citizenry?

A questionnaire that seeks or even one might say, 'entices' a person to 'make an
attempt' to cross a picket line in order to receive a benefit, is cruel, in accordance with
the 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 encompass
freedom from the threat of physical punishment or suffering as well as freedom
from actual punisment or suffering itself. In other words the fact of exposure is
enough to violate security of the person.'

This is cruel within the meaning of section 12 of the Charter. Singh argues the
proposition 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. And
clearly introduces the question of why is the government in the business of 'potentially
placing benefit applicants in harms way'. Note: although Singh involved section 7 of
the Charter, Singh is still relevant under section 12 of the Charter. See also R v
Morgentaler 1988 1 S.C.R.

I would like to extend this argument a little, and demonstrate another cruel aspect of
the 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 potential
violence 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 of
a 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 that
this stance by TELUS should have allowed the BC employees exemption from denial of
benefits. TELUS advertised that bodily violence would be the result of attempting to
cross the picket line, but the Charter guarantees us freedom from bodily harm: if an
attempt to cross would bring us harm, then it would be cruel for s.36.1 to demand of us
that we endanger ourselves before being allowed benefits. What this scenario
demonstrates, in this case, is the cruel inadequacy of the questionnaire because its
format is designed in such a manner as to unequivocally and completely fail to capture
this kind of information. Under no circumstances except via appeal would the BC
locked 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 of
Charter case law to imagine that TELUS's printed threats of violence in BC should have
exempted 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 of
the Charter has no application in this case. I ask, in good conscience, what part of
these circumstances does not make the questionnaire’s 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 go
against 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 associate
would be jeopardized by my need for work. In a 'proper' democracy this is a choice
that is unacceptable. Respondent's pars. 31 and 32 (tab R-15) are off point. I am not
talking about the activities of an association, and whether or not those activities are
protected under the charter. I am talking about my freedom to associate. In fact, not
only do the respondents miss the point, they missed the fact that their citation argues
my point:

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

My point, exactly! An individual attempting to cross a picket in order to attempt to
qualify for benefits line would be jeopardizing his or her freedom to associate. It is not
the association's actions that are under attack, here, but the individual's. Again, this
situation points to yet another failure that arises because of 36.1's failure to distinguish
between 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 democratic
organization 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 a
lock-out? In that case the members of the association did not make an employment
choice — it was made for them. Financial desperation could, in theory, force people to
attempt to cross the picket line, even though such an action could result in
disassociation and fines. This would, in this circumstance, violate their freedom of
association.

Respondent par 8 (Tab R-12)
I would like to comment on the respondent’s description of the facts. While they are
true 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 clear
we were barred from reporting to work. Yet again the failure of the act to distinguish
between a strike and a lock-out muddies and distorts the language that describes the
situation to the detriment of the locked out labourer. That is bias. And if you think that
such language, a mere interchange of 'strike' and 'lock-out' is semantic
meaninglessness, then our society has wasted an uncountable expanse of resources to
remove gender bias from our official and unofficial languages. Why has our society
seen the need to remove gender bias if words don't mean anything significant? If
memory 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 achieve
anything because 'man' derives from the Latin 'manus' meaning an ungendered hand,
as in manipulation or manufacture. It was those who suffered under the language's
gender bias that wanted to see equality of representation in our language, and
concomitantly it was those who benefited from it that were blind to that benefit and
content with the status quo.

The respondent's paragraph 8 is ostensibly benign, and may even be so relative to
more malicious examples. However, I compare it to a phrase like 'The chairman and
the 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 exactly
why our society chose to remove from itself the ostensibly benign gender biased
language. In like manner, the anti-labour bias in the respondent's paragraph 8 is an
excellent example of the nature of the bias of 36.1 of the EI Act, a bias against a
distinguishable, recognizable, group — the labourer and especially the locked out
labourer.

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 born
in 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 respondent
paraphrases the intent of 36.1: "The purpose of this provision is to bolster the
neutrality of the employment insurance scheme by ensuring that neither party to a
labour 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 a
higgling 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? Is
neutrality extant in that situation? But even without the issue of an employer such as
TELUS being able to maintain its cash flows, the judges in Hills questioned the
government'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. The
government can hardly invoke neutrality if it declines to differentiate between a
legitimate grievance leading to a lock-out and a voluntary stoppage of work
following a breakdown in industrial relations. It is indeed difficult to classify as
neutral a refusal to pay benefits in the former situation." ... "

The respondent, in citing a tiny piece of Hills, has conveniently ignored the greater part
of Hills' 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 all
is not correct in the administration of 'neutrality.' The existence of 'should' in this
context implies that what is being 'shoulded' is in fact not happening. For example, if
the sentence were recast to read 'The government takes a neutral stance in a labour
dispute and does not support one side by providing unemployment insurance benefits
during a labour dispute....' then it becomes blatantly apparent that it is untrue. The
government does takes sides in a labour dispute, which was made crystal clear in the
enactment in 1999 of the pro-scab legislation in section 94 of the labour code, and in
the 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 the
distinction between a strike and a lock-out, because by its denial it is participating in a
lock-out through inaction to the benefit of the employer and to the detriment of the
locked out employee.

In Hills par 46 the Supreme Court judges quote S.H. Ephron: "The neutrality principle
can serve as a justification for the 'labour dispute disqualification' only if the parties to
the dispute stand on equal footing. In the majority of instances they do not." This was
written 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 made
in 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 enacted
before scabs could be efficiently contracted from Mexico or the U.S.A. to work in
Canada. In Hills the judges have explicitly stated that neutrality can only be assured in
a labour dispute if the two parties stand on equal footing. With the pro-scab legislation
and the willingness of the government to allow one party in a labour dispute to contract
out labour to a foreign country, under no conceivable act of perverse imagination can
the government's role to remain neutral in a labour dispute be true. By inaction the
government participated in the dispute to the advantage of the one party and to the
disadvantage of the other party. By enacting pro-scab legislation, the government has
shown their desire to directly affect the outcomes of a labour dispute against labour
unions. 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.'

Hills par 50 provides an excellent summary of the failure of the 36.1 to be neutral: Tab
R-3
"... the rationale underlying s.44 as it was originally enacted in England and
later incorporated in its Canadian counterpart, does not today enjoy much favour
in the United States or in Canada and no wonder, given the materially different
state of labour relations."

Respondent Section B (pars 19-27)
I find it interesting that the respondent cited Law v. Canada because a quick look at
the three criterion would put me, clearly, within a member of a distinct and
distinguishable 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 claimant
and others, in purpose and effect;
(B)whether one or more enumerated or analogous grounds of
discrimination are the basis for the differential treatment; and
(C)whether the law in question has a purpose or effect that is
discriminatory 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 differential
treatment. Hills even states that it does, while acknowledging that it 'shouldn't.' More
specifically, the law gives the union-breaking employer a distinct and decided
advantage in a planned, expansive, extensive and expensively organized and protracted
break-the-union dispute. Furthermore, the existence of this law provides a tool whose
existence provides the employer another weapon, even if small, yielded by the
government but which the employer can rely on and plan for in its efforts to starve out
its ungrateful labour. I repeat from Hills:

If an employer insists upon unreasonable terms in the settlement of a labour
dispute and the employees are aware of the fact that unemployment insurance
benefits will not be paid if there is a stoppage of work dueJeanette Black 2001
FCA 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, further
inspired TELUS to treat its locked out employees differently depending on their place of
residence in an effort to coerce its desired contract. It was generally accepted by the
BC membership that the TWU's strength was weakest in Alberta, in general because of
an anti-union sentiment therein, and because of the recent merger of the Alberta
unions into the TWU. TELUS, abetted by both s.94.2(1) and s.36(1), exploited that
weakness 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 with
the s.94.2(1) of the Labour Code. This section becomes all the more powerful in a
service industry where the bottom-line dollar effects of a locked out labour force is
minimal or even negligible because the lock-out's impact on the functionality and
service 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 by
exporting their employees' work to call service representatives in the Philippines, not
only are the grounds blatantly enumerated, but they span two and perhaps three
continents. See Exhibit 16 (Tab R-6) for the extent the employer used the power of
94.2(1).

The second analogous ground has to do with the conspicuous failures of the CIRB to
rule in a timely manner on issues important the union, while making quick and
contradictory 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 in
which the media clearly picked sides in the dispute and sided with the government in its
pro-corporatist, break-the-union efforts. I refer, in particular, to Fazil Mihlar, senior
editor of The Vancouver Sun, who praised TELUS for having broken the rules of labour
negotiation protocol, before he libellously disparaged the union. When I formally
complained 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 not
only 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 is
grounds enough to establish another manner in which labour is distinguished, the depth
of the anti-labour cant of the media was fully displayed when the BC Press Council
dismissed my complaint against an admitted liar without a single reference or
acknowledgement of either this senior editor of a large and influential newspaper lying
in his editorial or having admitted in writing to having enough considered judgement to
transform 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 Board
of Referees I include a concrete example of the media's ability to affect or bend
democracy towards its anti-labour/pro-corporatist ends, in their ability to publish with
impunity deliberate and purposefully misleading, even fraudulent, information. And
yes, it was in the media that I learned of the fraud, but not until long after the affects
that disinformation had had on the very tight provincial election were made manifest.
In that example, the media deliberately misrepresented the BC Teachers Federation
newsletter as a 'secret document' with plans to disrupt the Liberal government and its
agenda. 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. The
exhibit 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 the
company went bankrupt at about the same time that the owner of the company
suffered an ultimately fatal stroke. See Exhibit 23 (Tab R-7). The reasons for the
denial 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 Section
65.1(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 unforeseeable
event or circumstance." As the owner and sole Director of the company is
incapacitated and hospitalized due to a stroke or vascular accident and was
incapable of providing you with written working notice of termination, I would
find that those provisions apply in this situation. Tab R-7.

With this law, labour would be denied back wages out of recoverable assets if, for
example, an accountant defrauded the company. It would seem, however, that
creditors, the government and shareholders would be given access to whatever
liquefiable assets remained. Labour, again, is treated differentially from other
distinguishable 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 under
TELUS's direction in order to help break the union. And while, for the purposes of this
hearing they are anecdotal, there is in fact a long string of union employees who were
charged 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, under
guidance and direction from TELUS, chosen union undesirables to be set-up and fired in
a 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-labour
practices and abuses of power are not something deemed press-worthy by the media,
nor democratically interesting from a societal perspective, is additional evidence of the
distinguishably state 'labour' has in this society. The media, the law and society had
ample opportunity to be informed of TELUS's abuses of power, because the union took
them to court on many occasions and in more than a few of those TELUS was
reprimanded for their behaviour. Instead all turned a blind eye to TELUS's strong arm
tactics.

A sixth demonstrated grounds of discrimination was in the general failure of the police
and crown counsels to see that both parties were treated equally before the law, or
even to see that the laws of Canada were enforced when either TELUS or the AFI
agents violated them. For example, the AFI agents set up cameras on the busy streets
of downtown Vancouver to ensure that the violent and dangerous union didn't get
frisky. There was no enforcement from the city police or crown counsels to force
TELUS's private police force to stop infringing on the rights of the citizenry to be not
filmed by a private organization. When TELUS proceeded to bribe the unionized labour
force in Alberta with IPods and lucre, once again there were no signs from either the
police or crown counsels that something illegal had been undertaken to help undermine
the union. As an amusing statement of the effectiveness of TELUS's bribery plan, the
union president, Bruce Bell, publicly announced that the very tight failure of the first
ratification vote was in no small part because the scabs in Alberta who were raking in
Guy Duperreault Appellant 16
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TELUS's gifts and overtime pay, had voted against that first ratification. There appears
to 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, if
the union membership was deemed to be impeding the flow of traffic, even slightly, the
union was taken to court. When cable was stolen, the media and TELUS vociferously
denounced the union, but their apology remained mute when the thieves were
determined to be private entrepreneurs.

In respondents' pars 22 and 23, the respondent cites Delisle v. Canada and Dunmore
to prove that professional status does not constitute analogous grounds. The
respondent has missed the mark, here, because the respondent has mistaken a tree for
the forest. A labourer with a professional status is still a labourer. The fact that I can
even write that sentence, and have everyone in this room understand my meaning,
makes clear that the labourer is distinct from the professional RCMP officer. The
respondent’s argument, here, is off the mark, and therefore irrelevant to my case. To
further demonstrate this, I can say phrases like "the exploitation of labour", or "slave
labour", or "labour market", and each and everyone here understand clearly what I
mean. What happens, however, when I say something like "corporate exploitation" or
"managerial abuse"? In these two phrases, we understand clearly that the abuser is
the corporation and management. However, in the former, we understand clearly that
it is labour that is being exploited. The distinction is clear. Labour is a distinguishable
group, and is recognized by even this use of common English, to be in a position to be
exploited, 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 in
labour disputes have suffered historical disadvantage. Specifically, the vulnerability and
power imbalance of employees compared to that of their employees was discussed in
Wallace 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 Slaight
Communications 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 on
the 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 worker
is typically a relation between a bearer of power and one who is not a
bearer of power. In its inception it is an act of submission, in its operation
it 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, upon
all ordinary occasions, have the advantage in the dispute, and force the
other into a compliance with their terms. The masters, being fewer in
number, can combine much more easily; and the law, besides, authorises,
or at least does not prohibit their combinations, while it prohibits those of
the workmen. We have no acts of parliament against combining to lower
the price of work; but many against combining to raise it. In all such
disputes the masters can hold out much longer. A landlord, a farmer, a
master manufacturer, or merchant, though they did not employ a single
workman, could generally live a year or two upon the stocks which they
have already acquired. Many workmen could not subsist a week, few
could subsist a month, and scarce any a year without employment. In the
long-run the workman may be as necessary to his master as his master is
to him, but the necessity is not so immediate (Smith, Adam. An Inquiry
into the Nature and Causes of the Wealth of Nations, Bk. I, Ch. 8, "Of
the Wages of Labour", par. 12). I have cited this from my original
appeal, Exhibit 15.20 (Tab R-18):]

93 This unequal balance of power led the majority of the Court in Slaight
Communications, supra, to describe employees as a vulnerable group in society:
see p. 1051. The vulnerability of employees is underscored by the level of
importance which our society attaches to employment. As Dickson C.J. noted in
Reference 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 and
take a course called, for example, "Labour Market Economics." A text for that book is
called Labour Market Economics: Theory, Evidence and Policy in Canada, by Morely
Gunderson and W. Craig Riddell. [Toronto: McGraw-Hill Ryserson Ltd. 1988 2nd
Edition ISBN: 0-07-549079-X.] From the preface:
... the emphasis of this book is on the economic aspects of the market for
labour. For some persons, such an emphasis may appear misguided, given the
various peculiar characteristics of the labour market — a variety of factors with
goals that often conflict; an abundance of sociological, legislative and
institutional constraints; and a complex price (wage) structure with moral
overtones because of the human element and because wages are often called
upon both to allocate labour efficiently and to curb poverty. Because of these
and other peculiarities, some have argued that the labour market is
Guy Duperreault Appellant 18
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fundamentally different from other markets and that, therefore, economics is
largely irrelevant — or at most can play only a minor role — in analyzing labour
market phenomena.
Although there are important differences between labour markets and many
other markets — and they are what makes labour economics so interesting — a
basic theme of this book is that these differences are ones of degree and not of
kind. Rather than making economics irrelevant to the analysis of the labour
market, these characteristics make economics even more relevant in
understanding some of the basic underlying forces and in analyzing the impact,
and the reasons for the emergence, of a variety of sociological, legislative, and
institutional constraints. In essence, the complexity of the labour market makes
a basic theoretical framework even more necessary in order to understand the
basic underlying forces, and not miss the forest for the trees (xvii).

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

(C) does 36.1 have a purpose or effect that is discriminatory
As to whether s.36.1 has a purpose or effect that is discriminatory within the meaning
of the equality guarantee, clearly that is the case. I again refer to Hills. In Hills the
judges argue that 36.1 fails to be neutral because it does not distinguish between
strikes and lock-outs. That means, quite simply, that the locked out employee can be
at a considerable disadvantage than that of a striker during a labour dispute, despite
the ostensible purpose of 36.1 to ensure EI neutrality. In the TELUS dispute, for
example, the union and its membership clearly recognized that the nature of the
business put them at a significant negotiating disadvantage with their employer
because the withdrawal of labour would have very little short or medium term effect on
the company's bottom line. See, as evidence of this, Exhibit 15.16 Tab R-8. By its
failure to see this distinction, s.36.1 ensures that a distinguishable group, the
perniciously locked out labourer, is being hurt by the law to the advantage of another
group, the employer. Furthermore, the locked out employee will often be at a
disadvantage even compared to striking employees. If the law only benefited the
striking 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, it
even more powerfully benefits those in society who have already an excess of economic
and societal power — oligarchic big business. See Hills pars 46-48 (Tab R-5). It is
interesting to note that the CEO of TELUS was rewarded for locking out 'his' employees
for five months in 2005 with a compensation package, for 2005, that was in excess of
14 million dollars.

Summary
For 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 case
has 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 the
nature of both parties before neutrality can be considered, let alone achieved.
Neutrality is not achieved by the blind enforcement of deaf words. Such
behaviour is antithetical to a democracy because blinkered enforcement of any
law subjugates the citizens hurt by that law to the state and belies that citizen
being a participating member of a free democracy. Justice Wilson says this
powerfully 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 the
Department of Philosophy and Psychology at Birkbeck College, University
of London, in Guide to the Philosophy of Morals and Politics (1938), the
role of the state in a democracy is to establish the background conditions
under which individual citizens may pursue the ethical values which in
their view underlie the good life. He states at p. 801:

For the welfare of the state is nothing apart from the good of the
citizens who compose it. It is no doubt true that a State whose
citizens are compelled to go right is more efficient than one whose
citizens are free to go wrong. But what then? To sacrifice freedom
in the interests of efficiency, is to sacrifice what confers upon
human beings their humanity. It is no doubt easy to govern a flock
of sheep; but there is no credit in the governing, and, if the sheep
were born as men, no virtue in the sheep.
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Professor Joad further emphasizes at p. 803 that individuals in a
democratic 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 entails
his right to the full development and expression of his personality,
all other rights and claims must, the democrat holds, be
subordinated. I do not know how this principle is to be defended
any more than I can frame a defence for the principles of
democracy and liberty.

Professor Joad stresses that the essence of a democracy is its recognition
of 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, and
its blinkered administration makes it an unjust law, suitable for sheep and not people.