A disentitlement will not apply if a claimant proves that he or she is not participating in, financing or directly interested in the labour dispute that caused the stoppage of work.
Subsection 36(4) of the Employment Insurance Act
The onus is on the claimant to show that he or she is not participating in, financing or directly interested in the dispute.
Hills v. Canada (A.G.) , [1988] 1 S.C.R. 513 (S.C.C.) File no. 19094 A-175-84
Black v. C.E.I.C, August 30, 2001, F.C.J. 468 (F.C.A.) A-552-00
Battista v. Canada(A.G.), [2004] F.C.J. No. 1160 (F.C.A.) A-375-03
In order to be "participating", a claimant must play an active and personal role in the labour dispute.
Hills v. Canada (A.G.) , [1988] 1 S.C.R. 513 (S.C.C.) File no. 19094 A-175-84
If a claimant makes a genuine effort to report to work but cannot do so because of violence or threat of violence at a picket line, he or she will not be considered to be participating in the labour dispute. It is not necessary for a claimant to expose him or herself to danger in order to avoid a disentitlement. However, the apprehension of violence at the picket line must be "reasonable", "genuine" or "justifiable".
Valois v. Canada (A.G.) , [1986] 2 S.C.R. 439 (S.C.C.) File no. 17814 A-879-82
In order to determine whether a person is participating in a labour dispute or is an innocent bystander swept up in another's dispute, the conduct of the claimant and his or her bargaining agent must be considered. If a union has been actively involved in the labour dispute, its members cannot later claim that they are entitled to employment insurance benefits because they were not personally participating in the dispute, regardless of the degree of the union's involvement or its interest in the dispute, and of all the other surrounding circumstances.
Black v. C.E.I.C, August 30, 2001 (F.C.A.) A-552-00
Battista v. Canada(A.G.), [2004] F.C.J. No. 1160 (F.C.A.) A-375-03
Whether a claimant has demonstrated that he or she was not personally and actively participating in a labour dispute is largely a question of fact to be determined by the Board of Referees.
Black v. C.E.I.C, August 30, 2001, F.C.J. No. 468 (F.C.A.) A-552-00
"Financing" means an active, direct, voluntary connection between the financing and the strike and a meaningful connection between the payment and the dispute. It requires a voluntary, intentional act of contribution by the claimant. Accordingly, the payment of mandatory union dues, which are placed in a fund from which strike pay is paid to striking employees, does not constitute financing within the meaning of the legislation since a claimant has no choice but to pay the dues to ensure membership in good standing in the union.
Hills v. Canada (A.G.) , [1988] 1 S.C.R. 513 (S.C.C.) File no. 19094 A-175-84
The term "directly interested" means that a claimant has something to gain or fear from the labour dispute.
Hills v. Canada (A.G.) , [1988] 1 S.C.R. 513 (S.C.C.) File no. 19094 A-175-84
However, it is not only employees whose working conditions will be automatically determined or modified by the settlement of the dispute who are "directly interested" in the labour dispute. The issue is much more complex and must be resolved in light of all the facts of each case.
Legare v. Canada (Employment Insurance Commission), February 17, 1998, F.C.J. No. 216 (F.C.A.) A-511-97, A-512-97
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2009-04-28