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A Charter case over EI benefits

A former Gap employee with Down’s was ineligible for Employment Insurance


 

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In 2007, Sabrina Prokopiuk, 32, was laid off for four months from the Gap in Winnipeg’s Polo Park Shopping Centre while the store underwent renovations. Prokopiuk, who has Down’s syndrome, had worked at the store tidying changing rooms since November 1999. As far as her bosses were concerned, she was like any other employee. But when it came to collecting Employment Insurance, her Down’s had left her at a small disadvantage.

Prokopiuk had only been able to work 574 hours in the 12 months before the store went into mothballs. In Corner Brook, Nfld., or some other place with high unemployment, that would have qualified her easily for EI benefits. In Manitoba, it wasn’t quite enough; she needed 700. Manitoba’s Public Interest Law Centre is helping Prokopiuk appeal that EI board decision on the basis of the anti-discrimination provisions in the Charter of Rights. They have filed a memorandum with the Federal Court, which will designate an umpire to hear her Charter case, probably this fall or next spring.

EI uses hours of work to measure a claimant’s “attachment to the labour force.” PILC’s Byron Williams wants to know why there is geographic discrimination in its standards, but no accommodation for Prokopiuk’s disability. Down’s syndrome, no less than living in a high-unemployment region, makes it harder to find a job. And even if you get one, being limited to particular duties or having to coordinate shifts with a helper can make it hard to amass work hours.

“Sabrina worked at a series of unpaid jobs, trying to enter the labour force, before the Gap hired her,” he says. “Anyone would be hesitant to compare his ‘attachment’ to work with hers.”

Prokopiuk has moved on to new part-time jobs. Her mother Shirley says she sought legal assistance for her daughter because she felt that “a big injustice” was being done and she knew other adults with developmental disabilities had the same problem. “Some things about filing a claim really intimidated Sabrina,” says Shirley, “but she knows she’s helping other people.”


 

A Charter case over EI benefits

  1. I fail to understand why the EI system allows people to collect benefits year after year after year when they are repeatedly seasonally employed while there are hundreds of full time, year round jobs advertised by employers desperate for workers.

    This whole system needs to be fixed, unfortunately, the threat of lost votes makes fixing the issue politically unpalatable.

    http://viableopposition.blogspot.com/

    • Maybe we should look at the low amount of hours to qualify fisherman as Canada's failure to invest in the fishery's future, too. Instead of a coherent plan to make the industry viable, or to use boats and crews perhaps to help scientists do open ocean work, or to find viable alternatives to the fishery in other sectors. Instead, we lower the qualifying hours and throw money at the issue instead of finding real solutions.

    • Maybe we should look at the low amount of hours to qualify fisherman as Canada's failure to invest in the fishery's future, too. Instead of a coherent plan to make the industry viable, or to use boats and crews perhaps to help scientists do open ocean work, or to find viable alternatives to the fishery in other sectors. Instead, we lower the qualifying hours and throw money at the issue instead of finding real solutions.

    • Maybe we should look at the low amount of hours to qualify fisherman as Canada's failure to invest in the fishery's future, too. Instead of a coherent plan to make the industry viable, or to use boats and crews perhaps to help scientists do open ocean work, or to find viable alternatives to the fishery in other sectors. Instead, we lower the qualifying hours and throw money at the issue instead of finding real solutions.

    • Perhaps it has something to do with the skills of the seasonally employed not being readily transferable to those "hundreds of full time, year round jobs advertised by employers desperate for workers. "

      And if they were, and the seasonally employed were all transferred to full time work, who would be doing those seasonal jobs? And would that new cohort not also be collecting EI?

      If the system were reformed to eliminate seasonal workers from collecting, there would be the same effect of worker shortage in the seasonal industries, no? Or else an increase in the welfare rolls…

    • The answer to your question lies in the expanded expectations Canada has put on EI which is now often used to address regional disparity and as a social service support system, but still masquerades as a insurance program.
      Being unemployed in a single industry community is entirely different from being unemployed in a diverse urban area and being unemployed is also a vastly different experience for someone who is disadvantaged in some way.

      We could have a pure insurance system if our welfare system wasn't so massively dysfunctional, but insteading of addressing that, governments tend to bend the EI rules so that seasonal employees are spared the humiliation and poverty.

      Social assistance rates are too low, we're too quick to claw back what little income welfare recipients earn, and we attempt to discourage application by creating barriers and stigma, that recipients then have to live with. That's why I favour a guaranteed annual income, and am attracted to the negative income tax model currently being touted by Senator Hugh Segal. At the point where someone's income slips below the line, they get a cheque. At the point their income crosses the line, they pay taxes.

  2. I'm all for being tough with respect to EI in most cases, but I have to agree that with disabilities there should be a lot more flexibility. My standard "desperation makes people find a way to be productive" argument doesn't apply to someone with Down's Syndrome. Kudos to her for holding a job despite the obstacles she faces. That is very admirable.

    • It's a lovely standard argument. Too bad the real world shows us otherwise. Desperation typically leads to depression and/or desperate action. It is only rarely that that action is productive. That's why the phrase "desperate criminal" is so much more prevalent than "desperate law-abiding citizen"

    • It's a lovely standard argument. Too bad the real world shows us otherwise. Desperation typically leads to depression and/or desperate action. It is only rarely that that action is productive. That's why the phrase "desperate criminal" is so much more prevalent than "desperate law-abiding citizen"

      • Apparently your experience of the real world is quite different from mine. Most of the proudest accomplishments in my life (so far) were accomplished as a result of desperation. (no, they were not criminal acts)

        • Your life is anecdotal.

          Social sciences contain data. Studies of criminality have shown that criminals are primarily from situations that we would tend to call "desperate":

          • I dispute the claim, since I put a lot more faith in my real-world experience than your claims on an anonymous comment board, and even than the claims of many of the social "sciences" which are often nothing more than ideologues looking to advance their agendas by pretending that they are "science.

            But no matter, let's assume it's true for the sake of argument. Then there is still a crucial distinction, which you seem to be completely missing, between saying "criminals are produced by desperation" and "desperation tends to produce criminals". It's like concluding that all trees come from acorns simply because lots of acorns grow into trees.

          • So you dispute that if people stopped driving there'd be fewer collisions?

            You walk down the street drunk or something?

          • (1) You making an unsupported claim on an anonymous comment board is not the same as "huge masses of evidence". Hard to believe, I know, but guys like me are just intractable sometimes.

            (2) Do you really not see the logical fallacy of saying "criminals comes from desperation, therefore desperation only leads to a criminal"? Likewise, do you really not see the logical fallacy of saying "collisions come from driving, so driving only leads to a collision"?

            "Do you walk down the street drunk or something?"
            Nice. Stay classy, dude. Us closed-minded zealots need to be inspired by folks like you. Perhaps some day we can aspire to your open-mindedness and progressive tolerance of differences.

          • Claiming that someone opinion is null and void because this forum is anonymous is a sham. Can you or can you not refute the information that is displayed here? Does it matter if this persons name, address, and email are listed here? If so, explain why? The information is still just as relevant or incorrect regardless of the source if you can't make a valid argument, you lose the debate over this issue.

            Your standpoint of making EI "Dracaonian:" shows how little of the EI system you know. EI is already draconian, in the worst way. It regularly punishes pregnant women, handicapped people, and people working part-time- all of whom need the money more than most. If you try to increase your knowledge or skills by taking a simple training course, your EI cheque will be withheld for weeks and you may never see any EI money again.

            Employment Insurance in Canada isn't about getting people into working careers- since the late 80's all it has been about is "getting people off EI" and taking the first excuse to do so. I won't even get started on the $50,000,000,000 dollar surplus this program has generated, which our government has fed directly into the national debt with zero plans of ever returning that money to the working class of Canada.
            Lets remember that this money was TAXED from every workers paycheque under the pretense that they money was going back to the working class- NOT to the national debt.

            If you want to see what effect desperate people have on an economy, taken a look at Tunisia, Egypt, any other middle eastern country where the population is poverty-stricken due to corrupt government officials. Personally, I would rather have neighbours that can put food on their own table.

  3. Sabrina, for wanting to work and make a contribution despite her disability, sounds like a wonderful young lady. The Gap manager is a bit of a hero in this too for hiring her. It does not seem to fit with Gap's brand (at least at its peak) to have someone like that in one of their stores — as horrible as that sounds — the young, healthy perkiness they try to convey was mostly for suburban white people, but she was hired nonetheless.

  4. Sabrina's inability to qualify for EI demonstrates that current eligibility requirements not only deny benefits to workers with developmental disabilities in this instance, but to the tens of thousands of part-time workers who do not work sufficient hours to obtain benefits. The EI program is so restricted that since 1996, successive federal governments have been able to collect $57 Billion more in premiums than has been paid out in benefits. Whatever analysis one brings to the program's failures, I submit that workers who pay into the program should expect to receive benefits when they are unable to work. Since the EI Act was passed into law that has not been the case, while the program's real beneficiary has been the federal government itself and not the unemployed workers for whom the program was intended.

  5. Colby, if you are interested, I would love to hear about the eradication of the Charter challenges program relates to ability of folks Sabrina to seek legal remedies. When in the process would an individual normally seek assistance from the former challenges program (prior to or after the umpires ruling?), has Sabrina benefited from an alternative source of help? in lieu of the good will of Manitoba's Public Interest Law Centre would she have been able to bring the challenge forward? will that goodwill be sufficient to carry through whatever processes remain after the umpire's ruling?

    • I am executive director of the Community Unemployed Help Centre in Winnipeg. The Centre is a non-profit organization that has helped unemployed workers obtain their UI/EI benefits since the agency was established in 1980. Sabrina P. contacted us initially for assistance. Recognizing a potential Charter argument and not having the capacity to pursue the matter, we approached the Public Interest Law Centre (PILC) of Legal Aid Manitoba to represent Sabrina.

      We are grateful and fortunate that PILC agreed to take this case. The elimination of the Court Challenges program by the Harper government is shameful. The program had provided case funding to a maximum of $50,000 for Charter challenges. While that would not cover the entire cost of legal fees in a case such as this, the elimination of this funding provides an additional barrier for individuals who are seeking equality through the Courts under Canada's Charter of Rights and Freedoms.

      • thanks for your reply Neil. I also think the decision to eliminate the Court Challenges program (which I erroneously called the Charter Challenges program in my original post) was shameful. I thought that its practical impact in a case like Sabrina's would be important to highlight. As you understand it, will the PILC be able to see the case through in the absence of the resources Sabrina could have asked from the program prior to its eradication? It sounds like your NGO does a lot of great work in Winnipeg Neil. Thanks again for the reply!

        • Public Interest Law Centre is committed to seeing this case through, despite the obvious fiscal challenges it faces in the absence of Court Challenges funding. We have worked with PILC on previous cases and will continue to work together on equality issues in regard to EI.

  6. Yay sabrina… you are a trailblazer! Good job!

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