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Winnipeg Free Press - PRINT EDITION

EI payment rules for the disabled unconstitutional, family argues

By: Mary Agnes Welch

Posted: 04/23/2010 1:00 AM | Comments: 0 (including replies)

Sabrina Prokopiuk worked for nine years at The Gap in Polo Park manning the change room, folding clothes and tidying up.

She loved her job and The Gap loved her.

But when the store closed for four months during renovations, she was laid off with most of the other staff. Unlike many of her colleagues, though, Sabrina didn't qualify for employment insurance. Sabrina has Down syndrome, which made it hard for her to accumulate enough hours to meet EI's requirements.

Now, with the backing of Legal Aid Manitoba's Public Interest Law Centre, Sabrina and her mother are asking a federal court judge to declare those rules unconstitutional and a violation of Sabrina's charter right to equality.

"We are taking advantage of disabled people who are just trying to be productive members of society and live up to their potential," said Shirley Prokopiuk, Sabrina's mother. "It's just wrong."

The Prokopiuks are willing to take the case all the way to the Supreme Court to open up EI to people with intellectual and physical disabilities.

Sabrina worked 574 hours in the year before she was laid off in the spring of 2007. EI's rules -- tailored to each region of Canada based on local unemployment levels -- say Manitoba workers need 700 hours to qualify for benefits.

Though Sabrina had paid thousands of dollars into the EI program, she wasn't eligible to collect a dime.

"I was just floored," said Prokopiuk. "It's not about the money -- it's maybe $700 over four months. Big deal. It's the principle that counts."

The Prokopiuks took their case to the Board of Referees, the first level of appeal for people denied EI. The board rejected Sabrina's claim largely because it doesn't have the power to consider Charter challenges. Now, the family has asked an EI umpire -- almost always a federal court judge -- to review the case.

They argue that, just as there are different rules for workers in different parts of Canada with varying levels of unemployment, there ought to be different rules for people with intellectual disabilities who are not on a level playing field with able-bodied workers.

Ottawa is expected to file its rebuttal in the next couple of months and a hearing could happen as early as this fall.

A call to the federal government's lawyer was not returned and officials from Human Resources and Skills Development Canada offered no comment.

Local advocates for the disabled say the case raises issues of basic fairness. "If you are paying a premium as an insurance protection, then there should be some protection," said Laurie Beachell, national co-ordinator at the Council of Canadians with Disabilities.

Lawyer Beverly Froese said it's not clear how many people with disabilities work regular jobs but still don't qualify for EI, and EI experts say most disabled people who get rejected never take the case as far as the Prokopiuk's have. That's why their case could be precedent-setting.

Sabrina, 32, has moved into a community living residence with her best friend. She now has a clerical job with Direct Action in Support of Community Homes as well as a position at Value Village. She was a little wary at first of launching the appeal -- the massive EI rule book was intimidating.

"I said to her 'Sabrina, if we win you are going to help a lot of people,'" said Prokopiuk.

maryagnes.welch@freepress.mb.ca

Republished from the Winnipeg Free Press print edition April 23, 2010 A8

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