Workers and the Employment Insurance (EI) Regime
Summary (September 2002)


Under the theme of older adults, the Law Commission of Canada has been exploring a variety of situations in which older adults face distinctions in laws, policies or programs. Some of these distinctions are overt; others are subtle, systemic, or unwritten. Three research projects undertaken on behalf of the Law Commission have established that, in the various areas examined, older adults face discrimination, unfair burdens, and systemic inequalities.

One of these projects involved an investigation of potentially ageist elements in the federal employment insurance system carried out by Gaile McGregor, Director of Social Research for Terraconnaissance Inc., under the title Unemployment Protection for Older Workers: A Case Study of Systemic Bias in a Statutory Regime (2002, unpublished). Based on an analysis of documents, practices, and case law, Dr. McGregor found that of all population subgroups in the country, older workers are among the most likely to find themselves in need of the resources provided under EI programming, yet the least likely to derive much benefit from them. In part the shortfall relates to real disadvantages, from employability deficits to health issues to ageism among employers. However, the “real” problems are exacerbated by the 1996 legislation and the failure to give sufficient recognition to the special circumstances of older individuals. Dr. McGregor notes that one prejudicial feature of the new Act is the prohibition of preventative measures, which has radically diminished government support for workplace training and adjustment programs. Another is the emphasis on “self-help” in the system, which reduces the personal attention available to high-needs clients.

A compilation of McGregor’s findings on older worker disadvantage is publicly available in a Fact Sheet on the Economics of Aging in Canada.  Highlights of her conclusions are as follows.

1. Virtually every notable change that has taken place in the labour market over the last decade – sectoral shift, downsizing, computerization, the growth of non-standard jobs, the hollowing out of hierarchy – has disproportionately affected older workers. The unemployment rates of people over 45 are lower than those of youth, but their duration of joblessless is significantly longer. Older workers are overrepresented among discouraged workers, among permanently displaced workers, and among those forced unwillingly into part-time work. There is also evidence that much of the highly publicized recent trend toward early retirement is involuntary and financially punitive. Some of these phenomena may be attributed to skills gaps and low education levels among older cohorts, but a bigger barrier is the stereotyping of older individuals as less healthy, less mentally agile, less productive, and less receptive to retraining than younger ones, none of which is supported by research. Adding to the problem, social and economic inequity increases in later life, and the effects of other forms of disadvantage, like race, gender, and disability, become magnified with age.

2. “Reforms” to the (Un)Employment Insurance Act in the mid-nineties hit older workers very hard. Reducing benefit lengths and levels and tightening eligibility requirements obviously impacts more on those who take longer to find jobs and are susceptible to repeat episodes, just as capping or limiting the availability of sickness benefits impacts more on those facing greater health risks. Even before these changes were made, however, there was a built-in disadvantage since the regime is built around blanket rules based on the normative image of a “typical” unemployed person. Standardized job search and availability for work requirements are particularly problematic in this respect, especially given the approach taken by the EI Commission to application. As is made clear in guidelines published on the EI website, extenuating personal circumstances – physical limitations, mobility problems, family situation, attitudes of employers – are not taken into consideration when determining whether an individual is “really” available for work. Quite the opposite in fact. Expectations actually escalate the longer one is unemployed. There is some evidence that simply not being able to get a job may be taken as “proof” that one is either not available or not trying hard enough.

3. Changes made to the implementation regime in the mid-nineties were even more damaging to older workers than changes to the statute itself. Some of the problems were purely cost-driven. Even apart from the draining of resources from HRDC and the switch from personal to electronic client processing, the de-emphasis of long term solutions like retraining in favour of short duration, low cost, standardized counselling and job-search assistance services was particularly detrimental for displaced, low-educated, and inappropriately skilled workers, categories in which older individuals inevitably comprise a large majority. Other changes related more to shifts in the prevailing philosophy of governance. Downloading and privatization not only affected the quality and consistency of programming; they also shaped a new, significantly less user-friendly delivery regime. Free-market features like competitive contracting, numbers-based assessment methods, and rigid quota systems force front-line agencies to concentrate their efforts on the most readily employable – a phenomenon called “creaming” – with the result that high-needs or problem clients often fall between the cracks.

4. There is also evidence that the EI appeals system is significantly biased against claimants. The adverse party in these matters – the EI Commission – has been given very wide discretion under the Act (whole areas of activity are immunized against appeal) and exerts considerable control over the adjudication process itself. It sets the rules for hearings, selects and trains referees, dispenses interpretive guidelines, controls access, establishes case files, and advises claimants. This structure has been both protected and consolidated by the approach taken by the Federal Court to EI/UI cases. Despite some pronouncements by the Supreme Court to the contrary, EI/UI legislation has generally been viewed by lower court judges as fiscal rather than social legislation, and therefore deserving of judicial deference. The result is that most panels apply the strict letter of the law without considering any kind of equity solution. This is particularly prejudicial to those whose complaints relate to indirect or adverse impact discrimination.  A review of the jurisprudence shows that Charter arguments are typically dismissed and fairness issues are not taken into consideration.

For more information on this last issue, see Gaile McGregor, “Anti-Claimant Bias in the Employment Insurance Appeals System: Causes, Consequences, and Public Law Remedies” (2002) 15 (3) C.J.A.L.P. 213.

For more on the problems of older workers generally, see Gaile McGregor, A Fact Sheet on the Economics of Aging in Canada (Ottawa: Law Commission of Canada, 2002). For background on the sources and legal status of age discrimination in employment in this country, see Gaile McGregor, “(Old) Age and the Law in Canada: Taking Stock” (London: Terraconnaissance & Metro Labour Education Centre, 2000), available at  http://www3.sympatico.ca/terracon/gaile_mcgregor/papers_and_reports/index.htm.

The views expressed are those of the author and do not necessarily reflect the views of the Law Commission of Canada. The accuracy of the information is the sole responsibility of the author.

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