Trends to watch at NAB 2017

Trends to watch at NAB 2017

Next week is the annual National Association of Broadcasters show, or NAB, in Las Vegas, Nevada. NAB is primarily an industry conference, and isn’t generally focused on consumer products, but we go to NAB because it often gives us a window into the future. Tools and technologies created for Hollywood or the broadcast industry have a funny way of tricking down to everyman products over the next few years, and that’s usually a good thing (3D television being a notable exception, in my opinion).

So, let’s take a look at a few of the product categories we’ll be watching at NAB next week that have the potential to impact us not-named-Spielberg types in the coming years.

Tools for Emerging Filmmakers

The filmmaking industry has changed a lot in the past few years: technology has become better, costs have come down, and tools suitable for serious content creation are now accessible to anyone with a dream of producing films and the passion to make it happen. This transformation has ushered in an explosion of what are often referred to as ’emerging filmmakers.’

These are people who often started making films with DSLRs or mirrorless cameras, but have grown their skills or businesses to the point where they need better, dedicated tools. They include independent filmmakers, small businesses working for commercial clients, or any number of other filmmaking roles. Some things they have in common are that they care about creating high quality content, have high expectations for production value, and they don’t have upwards of $20,000 to buy a single cinema lens.

This category has grown large enough that we’re seeing more companies which have historically catered to the high end cinema market now looking to meet emerging filmmakers’ needs. Whether it’s to drive revenue or create brand loyalists, we’re seeing more tools designed and priced for these users. By way of example, in the past year we’ve seen cinema lenses such as Cookes and Fujinons with sub-$5,000 price points. We expect to see even more products aimed at emerging filmmakers at NAB. 

Virtual Reality (VR)

Virtual reality is a technology that everyone, from manufacturers to content creators, seems to want to succeed, but which hasn’t quite managed to do so. There’s clearly a lot of unrealized promise, and even Hollywood executives will tell you they’re spending a lot of money trying to figure out how to make it work. Will this be the year VR makes the leap?

NAB will once again feature a dedicated Virtual and Augmented Reality Pavillion where the VR community can show off its latest technology. And there are clearly a lot of businesses betting big money on it, ranging from consumer-focused companies like Yi Technologies, which plans to announce VR capture devices at the show, to the likes of 360 Designs, whose Flying EYE drone system will livestream 360º 6K content from miles away for a cool $75,000. 

The big question is whether any of the VR products or technologies we see at NAB this year will be enough to get significant traction in the market, or collectively move the needle toward wider adoption of VR by consumers, but the industry isn’t giving up on this one yet.

8K Technology

We actually saw 8K display technology for the first time at NAB a couple years ago. And yes, it’s good bleeping amazing. Last year, Canon had an 8K reference display in its booth with a magnifying glass next to it, teasing you to try to see the pixels. After all, with 8K you’re collecting about the same number of pixels as a Nikon D810. In bursts of 24 or 30 frames. Every second. Think of the memory cards you’re going to need… but I digress…

What does 8K mean for photographers, videographers, and emerging filmmakers? Right now, not a lot. In fact, it’s unlikely we’ll even see 8K TVs being widely marketed to consumers for a number of years. But on the content creation side, there’s a lot to be said for 8K. With 4K quickly moving in the direction of becoming a standard for viewing content, 8K will give content creators the same advantages that 4K acquisition has for creating 1080p content. Right now we’re still talking about very expensive, high end pro cinema and broadcast equipment, but what we see at NAB is often a preview to what we’ll see in less expensive gear a few years down the road.

And 8K technology may come faster than we expect. We’ve seen 4K gain fairly wide adoption very quickly, and most of the industry seems hell-bent on a collision course between full 8K broadcast and the 2020 Tokyo Olympics (having already demonstrated it at London 2012 and run test broadcasts from Rio 2016). Some of this 8K goodness (or massive data storage overhead, if you’re the glass-half-empty type) may start filtering its way into our cameras in the next few years.

HDR Video

HDR video is pretty much what it sounds like: high dynamic range video that lets us see brighter brights, darker darks, and more shades in between. It’s like HDR photos, but with motion, and done well it can look pretty amazing. From a consumer perspective, most talk about HDR video these days relates to TVs, but the market is still sorting itself out. As the old adage goes, ‘The great thing about standards is that we have so many to choose from.’ Between HDR10, Dolby Vision, and Hybrid Log-Gamma, there’s plenty of room for the marketers to fight it out and educate consumers on the jargon.

But what we’re most interested in is content creation, or HDR video capture. Admittedly, there’s not a lot here for the enthusiast or prosumer at the moment. But… (and you know there’s always a ‘but’) Panasonic has already told us to expect Hybrid Log-Gamma to be included in the mother of all firmware updates – or, as we affectionately know it, MOAFU (really rolls off your tongue, doesn’t it) – that’s coming for the Panasonic GH5 in summer 2017. We look forward to testing it. Once we figure out how to test it.

Drones

Love ’em or hate ’em, people are going to use drones for all kinds of things. (At least until Skynet, and we all know how that ends.) Of course, what we care about at DPReview is aerial imaging, whether it’s still photography or video. The drone industry has exploded in the past few years, with tools ranging from octocopters that nonchalantly ferry around RED and Arri cameras to consumer products you can buy off the shelf and use to make your own movies.

As with other video categories, what started out as technology available only to well-funded production studios has quickly started to filter down to the emerging filmmaker or prosumer level. In fact, less than six months ago DJI introduced the Inspire 2 drone and Zenmuse X5S camera. That combo uses a Micro Four Thirds camera to shoot 5.2K CinemaDNG Raw video with a bit rate of 4.2Gbps. All for the price of a Canon 1D X II. This is Hollywood-level stuff. They even got cinematographer Claudio Miranda, ASC (Life of Pi) to make a film with it, though he had to carry it around in his hands for some shots.

Why do I bring up a product that was announced a few months ago? First, because it’s an indication of where the technology is going, and competitors will need to find a way to respond. We’ll be watching to see if that happens at NAB. And second, because for the love of God, DJI, can you please put this combination of tech into a regular camera? I don’t care if it’s a Micro Four Thirds camera the size of a Canon 1D X II, I will write you a check tomorrow.

Such is my plea.

Live Streaming

It used to be that we recorded home movies which we then forced our friends and family to watch over Thanksgiving. Later came the internet, so we could just send aunt Mabel a Vimeo link, or start a YouTube channel about cats with millions of followers.

Today that’s no longer adequate. Things must be on the internet, and they must be on now! Whether it’s Vloggers broadcasting live from a tradeshow floor using their iPhones, or sites like DPReview doing live webcasts from a studio, live streaming has gained a lot of momentum, and viewers are demanding higher quality live streams as time goes on.

We’ve already seen products to meet this need at a consumer level, whether it’s a DJI Osmo that uses your phone to broadcast on Facebook Live, or the Blackmagic Web Presenter, which allows you to turn virtually any high quality camera into a streaming broadcast camera. We’ll be on the watch for other products and technologies that will fuel our live streaming future. Though we can’t promise to stream them to you live.

Budget 2017 Bill to Implement Employment Insurance and Canada Labour Code Measures

On April 11, 2017, the federal government introduced Bill C-44, the Budget Implementation Act, 2017, No. 1, omnibus legislation that would enact various measures outlined in its 2017 Budget. This article deals with the Bill’s amendments to Employment Insurance benefits under the Employment Insurance Act and similar measures under the Canada Labour Code.

1. Employment Insurance measures

Division 11 of Part 4 of the Bill amends the Employment Insurance Act to:

  • Extend parental EI benefits to an additional 26 weeks from the current 35 weeks,
  • Permit the payment of parental benefits to birth mothers over a longer period at a lower benefit rate,
  • Allow maternity benefits to be paid as early as the 12th week before the expected week of birth,
  • Create a benefit for family members to care for a critically ill adult and,
  • Allow for benefits to care for a critically ill child to be payable to family members not just parents.

Specifically,

1. Extend parental benefits and allow for the payment of parental benefits over a longer period at a lower benefit rate

EI parental benefits are offered to parents who are caring for a newborn or newly adopted child. Currently, a maximum of 35 weeks of parental benefits is available to biological, adoptive, or legally recognized parents. The parental EI benefits part is being extended an additional six months. As a result, EI parental leave is increasing an additional 26 weeks to about 61 weeks.

When a birth mother combines parental (EI) benefits with her maternity EI benefits of 15 weeks, she is allowed 50 weeks in a period of 52 weeks benefits. If this provision is enacted, the 12 months will be extended to 18 months.

These employees will be able to choose to receive employment insurance (EI) parental benefits while on parental leave:

  • of up to 18 months at a lower benefit rate of 33 percent of average weekly earnings, or
  • at the existing benefit rate of 55 percent over a period of up to 12 months (52 weeks).

In either choice, the total amount of benefits received will be the same.

Fathers or adoptive parents will now be entitled to the additional 26 weeks (currently 35 weeks) up to a total of 61 weeks of EI parental benefits.

The election is irrevocable once benefits are paid. This election binds the person who shares the parental benefits with the claimant for the same child or children. Moreover, parents who choose to share the EI parental benefits to care for the same child or children may not exceed 35 weeks or exceed 61 weeks (depending on the election).

The extended option will be available to new EI claimants who apply for employment insurance parental benefits once the measure is in place. Existing EI claimants already receiving the benefits will not be able to switch to the extended option.

While the total benefit amount available through EI will not change, the lower extended parental benefit rate may have an impact on employers who offer supplemental or top-up payments during parental leave. We recommend that employers start to review their policies and collective agreements to determine whether changes will be required and how they may allocate top-up payments over 18 months if required to do so. Changes to these plans will demand enough lead time to give notice to employees and negotiate the terms of any collective agreement with unions. There are some variables that employers need to consider when they are examining their top up and looking at their options.

The Bill also amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the extended parental EI benefits. However, most provinces and territories permit a total of 12 months (52 weeks) of combined maternity and parental leave for birth mothers, and 37 weeks of parental leave for biological fathers and adoptive parents. Details on these changes can be found below.

With this change to EI parental benefits, a provincial/territorial employer could face a situation where the employee who is a birth mother, may want to extend her combined maternity/parental leave for up to 18 months. The problem is that they are only permitted a combined statutory leave of 12 months under provincial or territorial employment/labour standards legislation. In the absence of changes to provincial or territorial employment/labour standards legislation, an employer faced with a request by an employee to grant an extended maternity/parental leave to match the period in which the employee is entitled to EI benefits for 18 months, may have to decline the request or accommodate the employee. This may pose serious challenges for some employers.

Fathers or adoptive parents who want to extend their parental leave to add the additional 26 weeks to the allowed 37 weeks under employment/labour standards legislation face the same situation.

2. Allow maternity benefits to be paid as early as the 12th week before the expected week of birth

Expectant mothers can begin to take EI maternity benefits for up to 12 weeks before their due dates, instead of the current eight weeks before the due date.

This change will not alter the provincial or territorial legislated length of pregnancy/maternity leave for all employees.

3. Create a benefit for family members to care for a critically ill adult and allow for benefits to care for a critically ill child to be payable to family members

A new EI Caregiving Benefit will be created that will give eligible caregivers up to 15 weeks of EI benefits during the period of 52 weeks, while they are temporarily away from work to support or care for critically ill or injured adult family members. This benefit would be in addition to the existing Compassionate Care Benefit, which applies only where an individual is providing care for a gravely ill family member at risk of dying within 26 weeks.

The new benefit will cover a broader range of situations where individuals are providing care to an adult family member who requires significant support to recover from a critical illness or injury. The caregiver EI benefit is meant for situations where, for example, a family member is incapacitated by a car accident but expected to make a partial or full recovery.

An employee will be entitled to the EI caregiver benefit if a medical doctor or nurse practitioner has issued a certificate stating the family member’s medical condition.

The EI benefit begins on the first day of the week in which either of the followings happens:

  • the day on which the first certificate is issued in respect of the adult that meets the requirements and is filed with the Commission, or
  • in the case of a claim that is made before the day on which the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

The EI benefits end on the last day of the week in which any of the followings occurs:

  • all benefits payable under this section in respect of the adult are exhausted,
  • the adult dies, or
  • the expiry of the 52 weeks following the first day of the week the employee was entitled to the benefits.

Most provinces and territories do not have “caregiving” leave in their employment/labour standards. Though most jurisdictions have some form of sick leave, family medical leave, or personal emergency leave, and human rights laws may require employers to accommodate employees who have family caregiving responsibilities or else they could face the risk of a “family status” discrimination claim.

Parents of critically ill children will continue to have access to up to 35 weeks of benefits to care for a critically ill child, however now, with additional flexibility to share these benefits with more family members because of the new caregiver benefits. The Bill clarifies that a family member other than parents may be entitled and share the current 35 week benefit period related to caring for a critically ill or injured child. This mean if you need an aunt or mother to care for your critically ill child in your stead, now they will be entitled to the 35 weeks of EI critically ill children benefit if they have to take time off from work to do it.

A medical doctor or nurse practitioner must certify that the child is critically ill.

4. Overall impact of the above changes

The Bill amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the above EI benefits.

For provincially and territorially regulated employers, it will be up to individual provinces or territories to amend their respective employment/labour standards laws to provide for enhanced job-protected leaves of absence that match the extension of benefits that is proposed under Bill C-44.

There is a precedent for the provinces/territories to follow the federal government’s lead when EI changes are made, but it remains to be seen what each province or territory will do in these circumstances and when.

The above changes if enacted would likely come into force January 1, 2018.

Other employment insurance changes

The medical practitioner that can issue a medical certificate referred to under maternity, parental, compassionate care, critically ill children, caregiver EI benefits has been changed to a medical doctor or nurse practitioner.

With new and increased benefits, the government also said employment insurance premiums would increase slightly next year, to $1.69 per $100 of insurable earnings in 2018, up from $1.63 in 2017. This increase commences on January 1, 2018. This is the maximum allowable annual increase permitted under the EI Act.

2. Canada Labour Code measures

1. Increase the maximum length of parental leave to 63 weeks

Every employee who has completed six consecutive months of continuous employment with an employer is entitled to parental leave of absence from employment of up to 63 weeks to care for a new-born child of the employee or a child who is in the care of the employee for the purpose of adoption under the laws governing adoption in the province or territory in which the employee resides.

The leave of absence granted may only be taken during a 78-week period.

The aggregate amount of leave that may be taken by two employees in respect of the same birth or adoption must not exceed 63 weeks during a 78-week period.

2. Extend the period prior to the estimated date of birth when the maternity leave may begin to 13 weeks

Every pregnant employee is entitled to a maternity leave of absence from employment of up to 17 weeks, which leave may begin not earlier than 13 weeks prior to the estimated date of her confinement (due date) and end not later than 17 weeks following the actual date of her confinement, if the employee:

  • has completed six consecutive months of continuous employment with an employer; and
  • provides her employer with a certificate of a qualified medical practitioner certifying that she is pregnant.

If the confinement has not occurred during the 17 weeks of her leave of absence, the leave of absence is extended until the date of her confinement.

3. Create a leave for a family member to care for a critically ill adult and allow for the leave related to the critical illness of a child to be taken by a family member

Every employee who has completed six consecutive months of continuous employment with an employer and who is a family member of a critically ill adult is entitled to a caregiver leave of absence from employment of up to 17 weeks in order to care for or support that adult if a medical doctor or nurse practitioner has issued a certificate that

  • states that the adult is critically ill and requires the care or support of one or more of their family members; and
  • sets out the period during which the adult requires that care or support.

The leave begins on the day the certificate is issued or, if the leave begins before the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

Unless there is a valid reason for not doing so, the employee must give at least four weeks’ notice in writing to the employer before the day on which the leave is to begin. If the four weeks’ notice cannot be given for a valid reason, the employee must notify the employer in writing as soon as possible that the employee intends to take a leave of absence.

The employee must notify the employer of any changes (change to start of the leave, end of the leave shorter than planned etc.). The employer must be provided with notice in writing of at least four weeks of any change in the length of leave intended to be taken, unless there is a valid reason why that notice cannot be given, in which case the employee must provide the employer with notice in writing as soon as possible.

However, if the employee wishes to shorten the length of the leave but does not provide the employer with four weeks’ notice, the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the new end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer.

4. Other clarification to current leaves

  • The Bill clarifies that a family member other than parents may be entitled to the critically ill children leave of absence to care for a critically ill or injured child.
  • For the purposes of the above lease, care, family member, medical doctor, nurse practitioner and support have the same meanings as in the regulations made under the Employment Insurance Act and week means the period between midnight on Saturday and midnight on the immediately following Saturday.
  • Medical practitioner is clarified to mean a medical doctor or nurse practitioner when a medical certificate is required for maternity, parental, compassionate care, critically ill child or caregiver leave.

The above changes if enacted, are set to come into force by orders in council but may not be earlier than July 10, 2017.

5. Changes to Division 17 of Part 4 that amends the Canada Labour Code

As stated in the Bill, Division 17 of Part 4 amends the Canada Labour Code to, among other things,

  • transfer to the Canada Industrial Relations Board the powers, duties and functions of appeals officers under the Canada Labour Code;
  • provide a complaint mechanism under Part III of that Act for employer reprisals. The employee has 90 days to make such a complaint to the Board after the day on which the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint;
  • permit the Minister of Labour to order an employer to determine, following an internal audit, whether it complies with a provision of Part III of that Act and to provide the Minister with a corresponding report;
  • permit inspectors to order an employer to cease the contravention of a provision of Part III of that Act;
  • extend the period with respect to which a payment order to recover unpaid wages or other amounts may be issued;
  • impose administrative fees on employers to whom payment orders are issued; and
  • establish an administrative monetary penalty scheme to supplement existing enforcement measures under Parts II and III of that Act.

This Division also amends the Wage Earner Protection Program Act to transfer to the Canada Industrial Relations Board the powers, duties and functions of adjudicators under that Act and makes consequential amendments to other Acts.

Budget 2017 Bill to Implement Employment Insurance and Canada Labour Code Measures

On April 11, 2017, the federal government introduced Bill C-44, the Budget Implementation Act, 2017, No. 1, omnibus legislation that would enact various measures outlined in its 2017 Budget. This article deals with the Bill’s amendments to Employment Insurance benefits under the Employment Insurance Act and similar measures under the Canada Labour Code.

1. Employment Insurance measures

Division 11 of Part 4 of the Bill amends the Employment Insurance Act to:

  • Extend parental EI benefits to an additional 26 weeks from the current 35 weeks,
  • Permit the payment of parental benefits to birth mothers over a longer period at a lower benefit rate,
  • Allow maternity benefits to be paid as early as the 12th week before the expected week of birth,
  • Create a benefit for family members to care for a critically ill adult and,
  • Allow for benefits to care for a critically ill child to be payable to family members not just parents.

Specifically,

1. Extend parental benefits and allow for the payment of parental benefits over a longer period at a lower benefit rate

EI parental benefits are offered to parents who are caring for a newborn or newly adopted child. Currently, a maximum of 35 weeks of parental benefits is available to biological, adoptive, or legally recognized parents. The parental EI benefits part is being extended an additional six months. As a result, EI parental leave is increasing an additional 26 weeks to about 61 weeks.

When a birth mother combines parental (EI) benefits with her maternity EI benefits of 15 weeks, she is allowed 50 weeks in a period of 52 weeks benefits. If this provision is enacted, the 12 months will be extended to 18 months.

These employees will be able to choose to receive employment insurance (EI) parental benefits while on parental leave:

  • of up to 18 months at a lower benefit rate of 33 percent of average weekly earnings, or
  • at the existing benefit rate of 55 percent over a period of up to 12 months (52 weeks).

In either choice, the total amount of benefits received will be the same.

Fathers or adoptive parents will now be entitled to the additional 26 weeks (currently 35 weeks) up to a total of 61 weeks of EI parental benefits.

The election is irrevocable once benefits are paid. This election binds the person who shares the parental benefits with the claimant for the same child or children. Moreover, parents who choose to share the EI parental benefits to care for the same child or children may not exceed 35 weeks or exceed 61 weeks (depending on the election).

The extended option will be available to new EI claimants who apply for employment insurance parental benefits once the measure is in place. Existing EI claimants already receiving the benefits will not be able to switch to the extended option.

While the total benefit amount available through EI will not change, the lower extended parental benefit rate may have an impact on employers who offer supplemental or top-up payments during parental leave. We recommend that employers start to review their policies and collective agreements to determine whether changes will be required and how they may allocate top-up payments over 18 months if required to do so. Changes to these plans will demand enough lead time to give notice to employees and negotiate the terms of any collective agreement with unions. There are some variables that employers need to consider when they are examining their top up and looking at their options.

The Bill also amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the extended parental EI benefits. However, most provinces and territories permit a total of 12 months (52 weeks) of combined maternity and parental leave for birth mothers, and 37 weeks of parental leave for biological fathers and adoptive parents. Details on these changes can be found below.

With this change to EI parental benefits, a provincial/territorial employer could face a situation where the employee who is a birth mother, may want to extend her combined maternity/parental leave for up to 18 months. The problem is that they are only permitted a combined statutory leave of 12 months under provincial or territorial employment/labour standards legislation. In the absence of changes to provincial or territorial employment/labour standards legislation, an employer faced with a request by an employee to grant an extended maternity/parental leave to match the period in which the employee is entitled to EI benefits for 18 months, may have to decline the request or accommodate the employee. This may pose serious challenges for some employers.

Fathers or adoptive parents who want to extend their parental leave to add the additional 26 weeks to the allowed 37 weeks under employment/labour standards legislation face the same situation.

2. Allow maternity benefits to be paid as early as the 12th week before the expected week of birth

Expectant mothers can begin to take EI maternity benefits for up to 12 weeks before their due dates, instead of the current eight weeks before the due date.

This change will not alter the provincial or territorial legislated length of pregnancy/maternity leave for all employees.

3. Create a benefit for family members to care for a critically ill adult and allow for benefits to care for a critically ill child to be payable to family members

A new EI Caregiving Benefit will be created that will give eligible caregivers up to 15 weeks of EI benefits during the period of 52 weeks, while they are temporarily away from work to support or care for critically ill or injured adult family members. This benefit would be in addition to the existing Compassionate Care Benefit, which applies only where an individual is providing care for a gravely ill family member at risk of dying within 26 weeks.

The new benefit will cover a broader range of situations where individuals are providing care to an adult family member who requires significant support to recover from a critical illness or injury. The caregiver EI benefit is meant for situations where, for example, a family member is incapacitated by a car accident but expected to make a partial or full recovery.

An employee will be entitled to the EI caregiver benefit if a medical doctor or nurse practitioner has issued a certificate stating the family member’s medical condition.

The EI benefit begins on the first day of the week in which either of the followings happens:

  • the day on which the first certificate is issued in respect of the adult that meets the requirements and is filed with the Commission, or
  • in the case of a claim that is made before the day on which the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

The EI benefits end on the last day of the week in which any of the followings occurs:

  • all benefits payable under this section in respect of the adult are exhausted,
  • the adult dies, or
  • the expiry of the 52 weeks following the first day of the week the employee was entitled to the benefits.

Most provinces and territories do not have “caregiving” leave in their employment/labour standards. Though most jurisdictions have some form of sick leave, family medical leave, or personal emergency leave, and human rights laws may require employers to accommodate employees who have family caregiving responsibilities or else they could face the risk of a “family status” discrimination claim.

Parents of critically ill children will continue to have access to up to 35 weeks of benefits to care for a critically ill child, however now, with additional flexibility to share these benefits with more family members because of the new caregiver benefits. The Bill clarifies that a family member other than parents may be entitled and share the current 35 week benefit period related to caring for a critically ill or injured child. This mean if you need an aunt or mother to care for your critically ill child in your stead, now they will be entitled to the 35 weeks of EI critically ill children benefit if they have to take time off from work to do it.

A medical doctor or nurse practitioner must certify that the child is critically ill.

4. Overall impact of the above changes

The Bill amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the above EI benefits.

For provincially and territorially regulated employers, it will be up to individual provinces or territories to amend their respective employment/labour standards laws to provide for enhanced job-protected leaves of absence that match the extension of benefits that is proposed under Bill C-44.

There is a precedent for the provinces/territories to follow the federal government’s lead when EI changes are made, but it remains to be seen what each province or territory will do in these circumstances and when.

The above changes if enacted would likely come into force January 1, 2018.

Other employment insurance changes

The medical practitioner that can issue a medical certificate referred to under maternity, parental, compassionate care, critically ill children, caregiver EI benefits has been changed to a medical doctor or nurse practitioner.

With new and increased benefits, the government also said employment insurance premiums would increase slightly next year, to $1.69 per $100 of insurable earnings in 2018, up from $1.63 in 2017. This increase commences on January 1, 2018. This is the maximum allowable annual increase permitted under the EI Act.

2. Canada Labour Code measures

1. Increase the maximum length of parental leave to 63 weeks

Every employee who has completed six consecutive months of continuous employment with an employer is entitled to parental leave of absence from employment of up to 63 weeks to care for a new-born child of the employee or a child who is in the care of the employee for the purpose of adoption under the laws governing adoption in the province or territory in which the employee resides.

The leave of absence granted may only be taken during a 78-week period.

The aggregate amount of leave that may be taken by two employees in respect of the same birth or adoption must not exceed 63 weeks during a 78-week period.

2. Extend the period prior to the estimated date of birth when the maternity leave may begin to 13 weeks

Every pregnant employee is entitled to a maternity leave of absence from employment of up to 17 weeks, which leave may begin not earlier than 13 weeks prior to the estimated date of her confinement (due date) and end not later than 17 weeks following the actual date of her confinement, if the employee:

  • has completed six consecutive months of continuous employment with an employer; and
  • provides her employer with a certificate of a qualified medical practitioner certifying that she is pregnant.

If the confinement has not occurred during the 17 weeks of her leave of absence, the leave of absence is extended until the date of her confinement.

3. Create a leave for a family member to care for a critically ill adult and allow for the leave related to the critical illness of a child to be taken by a family member

Every employee who has completed six consecutive months of continuous employment with an employer and who is a family member of a critically ill adult is entitled to a caregiver leave of absence from employment of up to 17 weeks in order to care for or support that adult if a medical doctor or nurse practitioner has issued a certificate that

  • states that the adult is critically ill and requires the care or support of one or more of their family members; and
  • sets out the period during which the adult requires that care or support.

The leave begins on the day the certificate is issued or, if the leave begins before the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

Unless there is a valid reason for not doing so, the employee must give at least four weeks’ notice in writing to the employer before the day on which the leave is to begin. If the four weeks’ notice cannot be given for a valid reason, the employee must notify the employer in writing as soon as possible that the employee intends to take a leave of absence.

The employee must notify the employer of any changes (change to start of the leave, end of the leave shorter than planned etc.). The employer must be provided with notice in writing of at least four weeks of any change in the length of leave intended to be taken, unless there is a valid reason why that notice cannot be given, in which case the employee must provide the employer with notice in writing as soon as possible.

However, if the employee wishes to shorten the length of the leave but does not provide the employer with four weeks’ notice, the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the new end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer.

4. Other clarification to current leaves

  • The Bill clarifies that a family member other than parents may be entitled to the critically ill children leave of absence to care for a critically ill or injured child.
  • For the purposes of the above lease, care, family member, medical doctor, nurse practitioner and support have the same meanings as in the regulations made under the Employment Insurance Act and week means the period between midnight on Saturday and midnight on the immediately following Saturday.
  • Medical practitioner is clarified to mean a medical doctor or nurse practitioner when a medical certificate is required for maternity, parental, compassionate care, critically ill child or caregiver leave.

The above changes if enacted, are set to come into force by orders in council but may not be earlier than July 10, 2017.

5. Changes to Division 17 of Part 4 that amends the Canada Labour Code

As stated in the Bill, Division 17 of Part 4 amends the Canada Labour Code to, among other things,

  • transfer to the Canada Industrial Relations Board the powers, duties and functions of appeals officers under the Canada Labour Code;
  • provide a complaint mechanism under Part III of that Act for employer reprisals. The employee has 90 days to make such a complaint to the Board after the day on which the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint;
  • permit the Minister of Labour to order an employer to determine, following an internal audit, whether it complies with a provision of Part III of that Act and to provide the Minister with a corresponding report;
  • permit inspectors to order an employer to cease the contravention of a provision of Part III of that Act;
  • extend the period with respect to which a payment order to recover unpaid wages or other amounts may be issued;
  • impose administrative fees on employers to whom payment orders are issued; and
  • establish an administrative monetary penalty scheme to supplement existing enforcement measures under Parts II and III of that Act.

This Division also amends the Wage Earner Protection Program Act to transfer to the Canada Industrial Relations Board the powers, duties and functions of adjudicators under that Act and makes consequential amendments to other Acts.

Budget 2017 Bill to Implement Employment Insurance and Canada Labour Code Measures

On April 11, 2017, the federal government introduced Bill C-44, the Budget Implementation Act, 2017, No. 1, omnibus legislation that would enact various measures outlined in its 2017 Budget. This article deals with the Bill’s amendments to Employment Insurance benefits under the Employment Insurance Act and similar measures under the Canada Labour Code.

1. Employment Insurance measures

Division 11 of Part 4 of the Bill amends the Employment Insurance Act to:

  • Extend parental EI benefits to an additional 26 weeks from the current 35 weeks,
  • Permit the payment of parental benefits to birth mothers over a longer period at a lower benefit rate,
  • Allow maternity benefits to be paid as early as the 12th week before the expected week of birth,
  • Create a benefit for family members to care for a critically ill adult and,
  • Allow for benefits to care for a critically ill child to be payable to family members not just parents.

Specifically,

1. Extend parental benefits and allow for the payment of parental benefits over a longer period at a lower benefit rate

EI parental benefits are offered to parents who are caring for a newborn or newly adopted child. Currently, a maximum of 35 weeks of parental benefits is available to biological, adoptive, or legally recognized parents. The parental EI benefits part is being extended an additional six months. As a result, EI parental leave is increasing an additional 26 weeks to about 61 weeks.

When a birth mother combines parental (EI) benefits with her maternity EI benefits of 15 weeks, she is allowed 50 weeks in a period of 52 weeks benefits. If this provision is enacted, the 12 months will be extended to 18 months.

These employees will be able to choose to receive employment insurance (EI) parental benefits while on parental leave:

  • of up to 18 months at a lower benefit rate of 33 percent of average weekly earnings, or
  • at the existing benefit rate of 55 percent over a period of up to 12 months (52 weeks).

In either choice, the total amount of benefits received will be the same.

Fathers or adoptive parents will now be entitled to the additional 26 weeks (currently 35 weeks) up to a total of 61 weeks of EI parental benefits.

The election is irrevocable once benefits are paid. This election binds the person who shares the parental benefits with the claimant for the same child or children. Moreover, parents who choose to share the EI parental benefits to care for the same child or children may not exceed 35 weeks or exceed 61 weeks (depending on the election).

The extended option will be available to new EI claimants who apply for employment insurance parental benefits once the measure is in place. Existing EI claimants already receiving the benefits will not be able to switch to the extended option.

While the total benefit amount available through EI will not change, the lower extended parental benefit rate may have an impact on employers who offer supplemental or top-up payments during parental leave. We recommend that employers start to review their policies and collective agreements to determine whether changes will be required and how they may allocate top-up payments over 18 months if required to do so. Changes to these plans will demand enough lead time to give notice to employees and negotiate the terms of any collective agreement with unions. There are some variables that employers need to consider when they are examining their top up and looking at their options.

The Bill also amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the extended parental EI benefits. However, most provinces and territories permit a total of 12 months (52 weeks) of combined maternity and parental leave for birth mothers, and 37 weeks of parental leave for biological fathers and adoptive parents. Details on these changes can be found below.

With this change to EI parental benefits, a provincial/territorial employer could face a situation where the employee who is a birth mother, may want to extend her combined maternity/parental leave for up to 18 months. The problem is that they are only permitted a combined statutory leave of 12 months under provincial or territorial employment/labour standards legislation. In the absence of changes to provincial or territorial employment/labour standards legislation, an employer faced with a request by an employee to grant an extended maternity/parental leave to match the period in which the employee is entitled to EI benefits for 18 months, may have to decline the request or accommodate the employee. This may pose serious challenges for some employers.

Fathers or adoptive parents who want to extend their parental leave to add the additional 26 weeks to the allowed 37 weeks under employment/labour standards legislation face the same situation.

2. Allow maternity benefits to be paid as early as the 12th week before the expected week of birth

Expectant mothers can begin to take EI maternity benefits for up to 12 weeks before their due dates, instead of the current eight weeks before the due date.

This change will not alter the provincial or territorial legislated length of pregnancy/maternity leave for all employees.

3. Create a benefit for family members to care for a critically ill adult and allow for benefits to care for a critically ill child to be payable to family members

A new EI Caregiving Benefit will be created that will give eligible caregivers up to 15 weeks of EI benefits during the period of 52 weeks, while they are temporarily away from work to support or care for critically ill or injured adult family members. This benefit would be in addition to the existing Compassionate Care Benefit, which applies only where an individual is providing care for a gravely ill family member at risk of dying within 26 weeks.

The new benefit will cover a broader range of situations where individuals are providing care to an adult family member who requires significant support to recover from a critical illness or injury. The caregiver EI benefit is meant for situations where, for example, a family member is incapacitated by a car accident but expected to make a partial or full recovery.

An employee will be entitled to the EI caregiver benefit if a medical doctor or nurse practitioner has issued a certificate stating the family member’s medical condition.

The EI benefit begins on the first day of the week in which either of the followings happens:

  • the day on which the first certificate is issued in respect of the adult that meets the requirements and is filed with the Commission, or
  • in the case of a claim that is made before the day on which the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

The EI benefits end on the last day of the week in which any of the followings occurs:

  • all benefits payable under this section in respect of the adult are exhausted,
  • the adult dies, or
  • the expiry of the 52 weeks following the first day of the week the employee was entitled to the benefits.

Most provinces and territories do not have “caregiving” leave in their employment/labour standards. Though most jurisdictions have some form of sick leave, family medical leave, or personal emergency leave, and human rights laws may require employers to accommodate employees who have family caregiving responsibilities or else they could face the risk of a “family status” discrimination claim.

Parents of critically ill children will continue to have access to up to 35 weeks of benefits to care for a critically ill child, however now, with additional flexibility to share these benefits with more family members because of the new caregiver benefits. The Bill clarifies that a family member other than parents may be entitled and share the current 35 week benefit period related to caring for a critically ill or injured child. This mean if you need an aunt or mother to care for your critically ill child in your stead, now they will be entitled to the 35 weeks of EI critically ill children benefit if they have to take time off from work to do it.

A medical doctor or nurse practitioner must certify that the child is critically ill.

4. Overall impact of the above changes

The Bill amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the above EI benefits.

For provincially and territorially regulated employers, it will be up to individual provinces or territories to amend their respective employment/labour standards laws to provide for enhanced job-protected leaves of absence that match the extension of benefits that is proposed under Bill C-44.

There is a precedent for the provinces/territories to follow the federal government’s lead when EI changes are made, but it remains to be seen what each province or territory will do in these circumstances and when.

The above changes if enacted would likely come into force January 1, 2018.

Other employment insurance changes

The medical practitioner that can issue a medical certificate referred to under maternity, parental, compassionate care, critically ill children, caregiver EI benefits has been changed to a medical doctor or nurse practitioner.

With new and increased benefits, the government also said employment insurance premiums would increase slightly next year, to $1.69 per $100 of insurable earnings in 2018, up from $1.63 in 2017. This increase commences on January 1, 2018. This is the maximum allowable annual increase permitted under the EI Act.

2. Canada Labour Code measures

1. Increase the maximum length of parental leave to 63 weeks

Every employee who has completed six consecutive months of continuous employment with an employer is entitled to parental leave of absence from employment of up to 63 weeks to care for a new-born child of the employee or a child who is in the care of the employee for the purpose of adoption under the laws governing adoption in the province or territory in which the employee resides.

The leave of absence granted may only be taken during a 78-week period.

The aggregate amount of leave that may be taken by two employees in respect of the same birth or adoption must not exceed 63 weeks during a 78-week period.

2. Extend the period prior to the estimated date of birth when the maternity leave may begin to 13 weeks

Every pregnant employee is entitled to a maternity leave of absence from employment of up to 17 weeks, which leave may begin not earlier than 13 weeks prior to the estimated date of her confinement (due date) and end not later than 17 weeks following the actual date of her confinement, if the employee:

  • has completed six consecutive months of continuous employment with an employer; and
  • provides her employer with a certificate of a qualified medical practitioner certifying that she is pregnant.

If the confinement has not occurred during the 17 weeks of her leave of absence, the leave of absence is extended until the date of her confinement.

3. Create a leave for a family member to care for a critically ill adult and allow for the leave related to the critical illness of a child to be taken by a family member

Every employee who has completed six consecutive months of continuous employment with an employer and who is a family member of a critically ill adult is entitled to a caregiver leave of absence from employment of up to 17 weeks in order to care for or support that adult if a medical doctor or nurse practitioner has issued a certificate that

  • states that the adult is critically ill and requires the care or support of one or more of their family members; and
  • sets out the period during which the adult requires that care or support.

The leave begins on the day the certificate is issued or, if the leave begins before the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

Unless there is a valid reason for not doing so, the employee must give at least four weeks’ notice in writing to the employer before the day on which the leave is to begin. If the four weeks’ notice cannot be given for a valid reason, the employee must notify the employer in writing as soon as possible that the employee intends to take a leave of absence.

The employee must notify the employer of any changes (change to start of the leave, end of the leave shorter than planned etc.). The employer must be provided with notice in writing of at least four weeks of any change in the length of leave intended to be taken, unless there is a valid reason why that notice cannot be given, in which case the employee must provide the employer with notice in writing as soon as possible.

However, if the employee wishes to shorten the length of the leave but does not provide the employer with four weeks’ notice, the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the new end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer.

4. Other clarification to current leaves

  • The Bill clarifies that a family member other than parents may be entitled to the critically ill children leave of absence to care for a critically ill or injured child.
  • For the purposes of the above lease, care, family member, medical doctor, nurse practitioner and support have the same meanings as in the regulations made under the Employment Insurance Act and week means the period between midnight on Saturday and midnight on the immediately following Saturday.
  • Medical practitioner is clarified to mean a medical doctor or nurse practitioner when a medical certificate is required for maternity, parental, compassionate care, critically ill child or caregiver leave.

The above changes if enacted, are set to come into force by orders in council but may not be earlier than July 10, 2017.

5. Changes to Division 17 of Part 4 that amends the Canada Labour Code

As stated in the Bill, Division 17 of Part 4 amends the Canada Labour Code to, among other things,

  • transfer to the Canada Industrial Relations Board the powers, duties and functions of appeals officers under the Canada Labour Code;
  • provide a complaint mechanism under Part III of that Act for employer reprisals. The employee has 90 days to make such a complaint to the Board after the day on which the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint;
  • permit the Minister of Labour to order an employer to determine, following an internal audit, whether it complies with a provision of Part III of that Act and to provide the Minister with a corresponding report;
  • permit inspectors to order an employer to cease the contravention of a provision of Part III of that Act;
  • extend the period with respect to which a payment order to recover unpaid wages or other amounts may be issued;
  • impose administrative fees on employers to whom payment orders are issued; and
  • establish an administrative monetary penalty scheme to supplement existing enforcement measures under Parts II and III of that Act.

This Division also amends the Wage Earner Protection Program Act to transfer to the Canada Industrial Relations Board the powers, duties and functions of adjudicators under that Act and makes consequential amendments to other Acts.

Budget 2017 Bill to Implement Employment Insurance and Canada Labour Code Measures

On April 11, 2017, the federal government introduced Bill C-44, the Budget Implementation Act, 2017, No. 1, omnibus legislation that would enact various measures outlined in its 2017 Budget. This article deals with the Bill’s amendments to Employment Insurance benefits under the Employment Insurance Act and similar measures under the Canada Labour Code.

1. Employment Insurance measures

Division 11 of Part 4 of the Bill amends the Employment Insurance Act to:

  • Extend parental EI benefits to an additional 26 weeks from the current 35 weeks,
  • Permit the payment of parental benefits to birth mothers over a longer period at a lower benefit rate,
  • Allow maternity benefits to be paid as early as the 12th week before the expected week of birth,
  • Create a benefit for family members to care for a critically ill adult and,
  • Allow for benefits to care for a critically ill child to be payable to family members not just parents.

Specifically,

1. Extend parental benefits and allow for the payment of parental benefits over a longer period at a lower benefit rate

EI parental benefits are offered to parents who are caring for a newborn or newly adopted child. Currently, a maximum of 35 weeks of parental benefits is available to biological, adoptive, or legally recognized parents. The parental EI benefits part is being extended an additional six months. As a result, EI parental leave is increasing an additional 26 weeks to about 61 weeks.

When a birth mother combines parental (EI) benefits with her maternity EI benefits of 15 weeks, she is allowed 50 weeks in a period of 52 weeks benefits. If this provision is enacted, the 12 months will be extended to 18 months.

These employees will be able to choose to receive employment insurance (EI) parental benefits while on parental leave:

  • of up to 18 months at a lower benefit rate of 33 percent of average weekly earnings, or
  • at the existing benefit rate of 55 percent over a period of up to 12 months (52 weeks).

In either choice, the total amount of benefits received will be the same.

Fathers or adoptive parents will now be entitled to the additional 26 weeks (currently 35 weeks) up to a total of 61 weeks of EI parental benefits.

The election is irrevocable once benefits are paid. This election binds the person who shares the parental benefits with the claimant for the same child or children. Moreover, parents who choose to share the EI parental benefits to care for the same child or children may not exceed 35 weeks or exceed 61 weeks (depending on the election).

The extended option will be available to new EI claimants who apply for employment insurance parental benefits once the measure is in place. Existing EI claimants already receiving the benefits will not be able to switch to the extended option.

While the total benefit amount available through EI will not change, the lower extended parental benefit rate may have an impact on employers who offer supplemental or top-up payments during parental leave. We recommend that employers start to review their policies and collective agreements to determine whether changes will be required and how they may allocate top-up payments over 18 months if required to do so. Changes to these plans will demand enough lead time to give notice to employees and negotiate the terms of any collective agreement with unions. There are some variables that employers need to consider when they are examining their top up and looking at their options.

The Bill also amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the extended parental EI benefits. However, most provinces and territories permit a total of 12 months (52 weeks) of combined maternity and parental leave for birth mothers, and 37 weeks of parental leave for biological fathers and adoptive parents. Details on these changes can be found below.

With this change to EI parental benefits, a provincial/territorial employer could face a situation where the employee who is a birth mother, may want to extend her combined maternity/parental leave for up to 18 months. The problem is that they are only permitted a combined statutory leave of 12 months under provincial or territorial employment/labour standards legislation. In the absence of changes to provincial or territorial employment/labour standards legislation, an employer faced with a request by an employee to grant an extended maternity/parental leave to match the period in which the employee is entitled to EI benefits for 18 months, may have to decline the request or accommodate the employee. This may pose serious challenges for some employers.

Fathers or adoptive parents who want to extend their parental leave to add the additional 26 weeks to the allowed 37 weeks under employment/labour standards legislation face the same situation.

2. Allow maternity benefits to be paid as early as the 12th week before the expected week of birth

Expectant mothers can begin to take EI maternity benefits for up to 12 weeks before their due dates, instead of the current eight weeks before the due date.

This change will not alter the provincial or territorial legislated length of pregnancy/maternity leave for all employees.

3. Create a benefit for family members to care for a critically ill adult and allow for benefits to care for a critically ill child to be payable to family members

A new EI Caregiving Benefit will be created that will give eligible caregivers up to 15 weeks of EI benefits during the period of 52 weeks, while they are temporarily away from work to support or care for critically ill or injured adult family members. This benefit would be in addition to the existing Compassionate Care Benefit, which applies only where an individual is providing care for a gravely ill family member at risk of dying within 26 weeks.

The new benefit will cover a broader range of situations where individuals are providing care to an adult family member who requires significant support to recover from a critical illness or injury. The caregiver EI benefit is meant for situations where, for example, a family member is incapacitated by a car accident but expected to make a partial or full recovery.

An employee will be entitled to the EI caregiver benefit if a medical doctor or nurse practitioner has issued a certificate stating the family member’s medical condition.

The EI benefit begins on the first day of the week in which either of the followings happens:

  • the day on which the first certificate is issued in respect of the adult that meets the requirements and is filed with the Commission, or
  • in the case of a claim that is made before the day on which the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

The EI benefits end on the last day of the week in which any of the followings occurs:

  • all benefits payable under this section in respect of the adult are exhausted,
  • the adult dies, or
  • the expiry of the 52 weeks following the first day of the week the employee was entitled to the benefits.

Most provinces and territories do not have “caregiving” leave in their employment/labour standards. Though most jurisdictions have some form of sick leave, family medical leave, or personal emergency leave, and human rights laws may require employers to accommodate employees who have family caregiving responsibilities or else they could face the risk of a “family status” discrimination claim.

Parents of critically ill children will continue to have access to up to 35 weeks of benefits to care for a critically ill child, however now, with additional flexibility to share these benefits with more family members because of the new caregiver benefits. The Bill clarifies that a family member other than parents may be entitled and share the current 35 week benefit period related to caring for a critically ill or injured child. This mean if you need an aunt or mother to care for your critically ill child in your stead, now they will be entitled to the 35 weeks of EI critically ill children benefit if they have to take time off from work to do it.

A medical doctor or nurse practitioner must certify that the child is critically ill.

4. Overall impact of the above changes

The Bill amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the above EI benefits.

For provincially and territorially regulated employers, it will be up to individual provinces or territories to amend their respective employment/labour standards laws to provide for enhanced job-protected leaves of absence that match the extension of benefits that is proposed under Bill C-44.

There is a precedent for the provinces/territories to follow the federal government’s lead when EI changes are made, but it remains to be seen what each province or territory will do in these circumstances and when.

The above changes if enacted would likely come into force January 1, 2018.

Other employment insurance changes

The medical practitioner that can issue a medical certificate referred to under maternity, parental, compassionate care, critically ill children, caregiver EI benefits has been changed to a medical doctor or nurse practitioner.

With new and increased benefits, the government also said employment insurance premiums would increase slightly next year, to $1.69 per $100 of insurable earnings in 2018, up from $1.63 in 2017. This increase commences on January 1, 2018. This is the maximum allowable annual increase permitted under the EI Act.

2. Canada Labour Code measures

1. Increase the maximum length of parental leave to 63 weeks

Every employee who has completed six consecutive months of continuous employment with an employer is entitled to parental leave of absence from employment of up to 63 weeks to care for a new-born child of the employee or a child who is in the care of the employee for the purpose of adoption under the laws governing adoption in the province or territory in which the employee resides.

The leave of absence granted may only be taken during a 78-week period.

The aggregate amount of leave that may be taken by two employees in respect of the same birth or adoption must not exceed 63 weeks during a 78-week period.

2. Extend the period prior to the estimated date of birth when the maternity leave may begin to 13 weeks

Every pregnant employee is entitled to a maternity leave of absence from employment of up to 17 weeks, which leave may begin not earlier than 13 weeks prior to the estimated date of her confinement (due date) and end not later than 17 weeks following the actual date of her confinement, if the employee:

  • has completed six consecutive months of continuous employment with an employer; and
  • provides her employer with a certificate of a qualified medical practitioner certifying that she is pregnant.

If the confinement has not occurred during the 17 weeks of her leave of absence, the leave of absence is extended until the date of her confinement.

3. Create a leave for a family member to care for a critically ill adult and allow for the leave related to the critical illness of a child to be taken by a family member

Every employee who has completed six consecutive months of continuous employment with an employer and who is a family member of a critically ill adult is entitled to a caregiver leave of absence from employment of up to 17 weeks in order to care for or support that adult if a medical doctor or nurse practitioner has issued a certificate that

  • states that the adult is critically ill and requires the care or support of one or more of their family members; and
  • sets out the period during which the adult requires that care or support.

The leave begins on the day the certificate is issued or, if the leave begins before the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

Unless there is a valid reason for not doing so, the employee must give at least four weeks’ notice in writing to the employer before the day on which the leave is to begin. If the four weeks’ notice cannot be given for a valid reason, the employee must notify the employer in writing as soon as possible that the employee intends to take a leave of absence.

The employee must notify the employer of any changes (change to start of the leave, end of the leave shorter than planned etc.). The employer must be provided with notice in writing of at least four weeks of any change in the length of leave intended to be taken, unless there is a valid reason why that notice cannot be given, in which case the employee must provide the employer with notice in writing as soon as possible.

However, if the employee wishes to shorten the length of the leave but does not provide the employer with four weeks’ notice, the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the new end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer.

4. Other clarification to current leaves

  • The Bill clarifies that a family member other than parents may be entitled to the critically ill children leave of absence to care for a critically ill or injured child.
  • For the purposes of the above lease, care, family member, medical doctor, nurse practitioner and support have the same meanings as in the regulations made under the Employment Insurance Act and week means the period between midnight on Saturday and midnight on the immediately following Saturday.
  • Medical practitioner is clarified to mean a medical doctor or nurse practitioner when a medical certificate is required for maternity, parental, compassionate care, critically ill child or caregiver leave.

The above changes if enacted, are set to come into force by orders in council but may not be earlier than July 10, 2017.

5. Changes to Division 17 of Part 4 that amends the Canada Labour Code

As stated in the Bill, Division 17 of Part 4 amends the Canada Labour Code to, among other things,

  • transfer to the Canada Industrial Relations Board the powers, duties and functions of appeals officers under the Canada Labour Code;
  • provide a complaint mechanism under Part III of that Act for employer reprisals. The employee has 90 days to make such a complaint to the Board after the day on which the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint;
  • permit the Minister of Labour to order an employer to determine, following an internal audit, whether it complies with a provision of Part III of that Act and to provide the Minister with a corresponding report;
  • permit inspectors to order an employer to cease the contravention of a provision of Part III of that Act;
  • extend the period with respect to which a payment order to recover unpaid wages or other amounts may be issued;
  • impose administrative fees on employers to whom payment orders are issued; and
  • establish an administrative monetary penalty scheme to supplement existing enforcement measures under Parts II and III of that Act.

This Division also amends the Wage Earner Protection Program Act to transfer to the Canada Industrial Relations Board the powers, duties and functions of adjudicators under that Act and makes consequential amendments to other Acts.

Budget 2017 Bill to Implement Employment Insurance and Canada Labour Code Measures

On April 11, 2017, the federal government introduced Bill C-44, the Budget Implementation Act, 2017, No. 1, omnibus legislation that would enact various measures outlined in its 2017 Budget. This article deals with the Bill’s amendments to Employment Insurance benefits under the Employment Insurance Act and similar measures under the Canada Labour Code.

1. Employment Insurance measures

Division 11 of Part 4 of the Bill amends the Employment Insurance Act to:

  • Extend parental EI benefits to an additional 26 weeks from the current 35 weeks,
  • Permit the payment of parental benefits to birth mothers over a longer period at a lower benefit rate,
  • Allow maternity benefits to be paid as early as the 12th week before the expected week of birth,
  • Create a benefit for family members to care for a critically ill adult and,
  • Allow for benefits to care for a critically ill child to be payable to family members not just parents.

Specifically,

1. Extend parental benefits and allow for the payment of parental benefits over a longer period at a lower benefit rate

EI parental benefits are offered to parents who are caring for a newborn or newly adopted child. Currently, a maximum of 35 weeks of parental benefits is available to biological, adoptive, or legally recognized parents. The parental EI benefits part is being extended an additional six months. As a result, EI parental leave is increasing an additional 26 weeks to about 61 weeks.

When a birth mother combines parental (EI) benefits with her maternity EI benefits of 15 weeks, she is allowed 50 weeks in a period of 52 weeks benefits. If this provision is enacted, the 12 months will be extended to 18 months.

These employees will be able to choose to receive employment insurance (EI) parental benefits while on parental leave:

  • of up to 18 months at a lower benefit rate of 33 percent of average weekly earnings, or
  • at the existing benefit rate of 55 percent over a period of up to 12 months (52 weeks).

In either choice, the total amount of benefits received will be the same.

Fathers or adoptive parents will now be entitled to the additional 26 weeks (currently 35 weeks) up to a total of 61 weeks of EI parental benefits.

The election is irrevocable once benefits are paid. This election binds the person who shares the parental benefits with the claimant for the same child or children. Moreover, parents who choose to share the EI parental benefits to care for the same child or children may not exceed 35 weeks or exceed 61 weeks (depending on the election).

The extended option will be available to new EI claimants who apply for employment insurance parental benefits once the measure is in place. Existing EI claimants already receiving the benefits will not be able to switch to the extended option.

While the total benefit amount available through EI will not change, the lower extended parental benefit rate may have an impact on employers who offer supplemental or top-up payments during parental leave. We recommend that employers start to review their policies and collective agreements to determine whether changes will be required and how they may allocate top-up payments over 18 months if required to do so. Changes to these plans will demand enough lead time to give notice to employees and negotiate the terms of any collective agreement with unions. There are some variables that employers need to consider when they are examining their top up and looking at their options.

The Bill also amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the extended parental EI benefits. However, most provinces and territories permit a total of 12 months (52 weeks) of combined maternity and parental leave for birth mothers, and 37 weeks of parental leave for biological fathers and adoptive parents. Details on these changes can be found below.

With this change to EI parental benefits, a provincial/territorial employer could face a situation where the employee who is a birth mother, may want to extend her combined maternity/parental leave for up to 18 months. The problem is that they are only permitted a combined statutory leave of 12 months under provincial or territorial employment/labour standards legislation. In the absence of changes to provincial or territorial employment/labour standards legislation, an employer faced with a request by an employee to grant an extended maternity/parental leave to match the period in which the employee is entitled to EI benefits for 18 months, may have to decline the request or accommodate the employee. This may pose serious challenges for some employers.

Fathers or adoptive parents who want to extend their parental leave to add the additional 26 weeks to the allowed 37 weeks under employment/labour standards legislation face the same situation.

2. Allow maternity benefits to be paid as early as the 12th week before the expected week of birth

Expectant mothers can begin to take EI maternity benefits for up to 12 weeks before their due dates, instead of the current eight weeks before the due date.

This change will not alter the provincial or territorial legislated length of pregnancy/maternity leave for all employees.

3. Create a benefit for family members to care for a critically ill adult and allow for benefits to care for a critically ill child to be payable to family members

A new EI Caregiving Benefit will be created that will give eligible caregivers up to 15 weeks of EI benefits during the period of 52 weeks, while they are temporarily away from work to support or care for critically ill or injured adult family members. This benefit would be in addition to the existing Compassionate Care Benefit, which applies only where an individual is providing care for a gravely ill family member at risk of dying within 26 weeks.

The new benefit will cover a broader range of situations where individuals are providing care to an adult family member who requires significant support to recover from a critical illness or injury. The caregiver EI benefit is meant for situations where, for example, a family member is incapacitated by a car accident but expected to make a partial or full recovery.

An employee will be entitled to the EI caregiver benefit if a medical doctor or nurse practitioner has issued a certificate stating the family member’s medical condition.

The EI benefit begins on the first day of the week in which either of the followings happens:

  • the day on which the first certificate is issued in respect of the adult that meets the requirements and is filed with the Commission, or
  • in the case of a claim that is made before the day on which the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

The EI benefits end on the last day of the week in which any of the followings occurs:

  • all benefits payable under this section in respect of the adult are exhausted,
  • the adult dies, or
  • the expiry of the 52 weeks following the first day of the week the employee was entitled to the benefits.

Most provinces and territories do not have “caregiving” leave in their employment/labour standards. Though most jurisdictions have some form of sick leave, family medical leave, or personal emergency leave, and human rights laws may require employers to accommodate employees who have family caregiving responsibilities or else they could face the risk of a “family status” discrimination claim.

Parents of critically ill children will continue to have access to up to 35 weeks of benefits to care for a critically ill child, however now, with additional flexibility to share these benefits with more family members because of the new caregiver benefits. The Bill clarifies that a family member other than parents may be entitled and share the current 35 week benefit period related to caring for a critically ill or injured child. This mean if you need an aunt or mother to care for your critically ill child in your stead, now they will be entitled to the 35 weeks of EI critically ill children benefit if they have to take time off from work to do it.

A medical doctor or nurse practitioner must certify that the child is critically ill.

4. Overall impact of the above changes

The Bill amends the Canada Labour Code to ensure that workers in federally regulated sectors have the job-protected leave provisions they need while they are receiving the above EI benefits.

For provincially and territorially regulated employers, it will be up to individual provinces or territories to amend their respective employment/labour standards laws to provide for enhanced job-protected leaves of absence that match the extension of benefits that is proposed under Bill C-44.

There is a precedent for the provinces/territories to follow the federal government’s lead when EI changes are made, but it remains to be seen what each province or territory will do in these circumstances and when.

The above changes if enacted would likely come into force January 1, 2018.

Other employment insurance changes

The medical practitioner that can issue a medical certificate referred to under maternity, parental, compassionate care, critically ill children, caregiver EI benefits has been changed to a medical doctor or nurse practitioner.

With new and increased benefits, the government also said employment insurance premiums would increase slightly next year, to $1.69 per $100 of insurable earnings in 2018, up from $1.63 in 2017. This increase commences on January 1, 2018. This is the maximum allowable annual increase permitted under the EI Act.

2. Canada Labour Code measures

1. Increase the maximum length of parental leave to 63 weeks

Every employee who has completed six consecutive months of continuous employment with an employer is entitled to parental leave of absence from employment of up to 63 weeks to care for a new-born child of the employee or a child who is in the care of the employee for the purpose of adoption under the laws governing adoption in the province or territory in which the employee resides.

The leave of absence granted may only be taken during a 78-week period.

The aggregate amount of leave that may be taken by two employees in respect of the same birth or adoption must not exceed 63 weeks during a 78-week period.

2. Extend the period prior to the estimated date of birth when the maternity leave may begin to 13 weeks

Every pregnant employee is entitled to a maternity leave of absence from employment of up to 17 weeks, which leave may begin not earlier than 13 weeks prior to the estimated date of her confinement (due date) and end not later than 17 weeks following the actual date of her confinement, if the employee:

  • has completed six consecutive months of continuous employment with an employer; and
  • provides her employer with a certificate of a qualified medical practitioner certifying that she is pregnant.

If the confinement has not occurred during the 17 weeks of her leave of absence, the leave of absence is extended until the date of her confinement.

3. Create a leave for a family member to care for a critically ill adult and allow for the leave related to the critical illness of a child to be taken by a family member

Every employee who has completed six consecutive months of continuous employment with an employer and who is a family member of a critically ill adult is entitled to a caregiver leave of absence from employment of up to 17 weeks in order to care for or support that adult if a medical doctor or nurse practitioner has issued a certificate that

  • states that the adult is critically ill and requires the care or support of one or more of their family members; and
  • sets out the period during which the adult requires that care or support.

The leave begins on the day the certificate is issued or, if the leave begins before the certificate is issued, the day from which the medical doctor or nurse practitioner certifies that the adult is critically ill.

Unless there is a valid reason for not doing so, the employee must give at least four weeks’ notice in writing to the employer before the day on which the leave is to begin. If the four weeks’ notice cannot be given for a valid reason, the employee must notify the employer in writing as soon as possible that the employee intends to take a leave of absence.

The employee must notify the employer of any changes (change to start of the leave, end of the leave shorter than planned etc.). The employer must be provided with notice in writing of at least four weeks of any change in the length of leave intended to be taken, unless there is a valid reason why that notice cannot be given, in which case the employee must provide the employer with notice in writing as soon as possible.

However, if the employee wishes to shorten the length of the leave but does not provide the employer with four weeks’ notice, the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the new end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer.

4. Other clarification to current leaves

  • The Bill clarifies that a family member other than parents may be entitled to the critically ill children leave of absence to care for a critically ill or injured child.
  • For the purposes of the above lease, care, family member, medical doctor, nurse practitioner and support have the same meanings as in the regulations made under the Employment Insurance Act and week means the period between midnight on Saturday and midnight on the immediately following Saturday.
  • Medical practitioner is clarified to mean a medical doctor or nurse practitioner when a medical certificate is required for maternity, parental, compassionate care, critically ill child or caregiver leave.

The above changes if enacted, are set to come into force by orders in council but may not be earlier than July 10, 2017.

5. Changes to Division 17 of Part 4 that amends the Canada Labour Code

As stated in the Bill, Division 17 of Part 4 amends the Canada Labour Code to, among other things,

  • transfer to the Canada Industrial Relations Board the powers, duties and functions of appeals officers under the Canada Labour Code;
  • provide a complaint mechanism under Part III of that Act for employer reprisals. The employee has 90 days to make such a complaint to the Board after the day on which the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint;
  • permit the Minister of Labour to order an employer to determine, following an internal audit, whether it complies with a provision of Part III of that Act and to provide the Minister with a corresponding report;
  • permit inspectors to order an employer to cease the contravention of a provision of Part III of that Act;
  • extend the period with respect to which a payment order to recover unpaid wages or other amounts may be issued;
  • impose administrative fees on employers to whom payment orders are issued; and
  • establish an administrative monetary penalty scheme to supplement existing enforcement measures under Parts II and III of that Act.

This Division also amends the Wage Earner Protection Program Act to transfer to the Canada Industrial Relations Board the powers, duties and functions of adjudicators under that Act and makes consequential amendments to other Acts.

The Constitution as Political Project


In his outstanding book The Framers’ Coup, Michael Klarman’s great objective is to retrieve the immediate context in which the Constitution was adopted and so recover our most fundamental document as a Federalist political project.  To this objective Klarman brings a compelling combination of historical insight and lawyerly thoroughness, confirming his status as one of our leading legal historians.  His careful treatment of the multiple chains of argument that surrounded the making of the Constitution results in a memorable volume that will be consulted for years.

I have to admit to wondering whether Klarman could add anything new to the many prior works on the adoption of the Constitution.  I’m happy to be proved wrong.  One of the most striking examples comes early, as Klarman provides the most detailed yet balanced discussion I have read of the many difficult issues facing the United States under the Articles of Confederation.  These issues were both internal, with respect to how the states related to each other and external, as the US could not fulfill its obligations under the treaties it had signed and still faced a dangerous situation, in effect surrounded by the European great powers.  At least in my reading of Klarman’s evidence, the Antifederalists were never able to formulate a compelling defense of the Articles, particularly with respect to America’s challenges in foreign affairs.

Another example is Klarman’s handling of Madison’s key role.  Some scholars have questioned Madison’s centrality, noting that Madison failed to prevail on several issues he saw as crucial in the Philadelphia Convention.  They have pointed as well to the relatively overlooked role of Madison’s opponents such as Roger Sherman of Connecticut.  To my mind, the sheer mass of evidence Klarman accumulates as to Madison’s contribution rebuilds the case that Madison, more than any other person, deserves the title of “Father of the Constitution.”  This is true not so much with respect to authorship of the text, but to Madison’s absolutely central place in the Federalist political project.  From beginning to end, from the Annapolis Convention to the Bill of Rights, Madison was not only there but always seemed to be the most prepared, the framer who kept his eye on all the moving parts.  Klarman restores Madison to his rightful place in the constitutional pantheon.

Emphasizing that the Constitution was a political project designed to cope with the defects of the Articles of Confederation means that in various ways, “theory” takes a backseat in Klarman’s account.  Klarman returns repeatedly to the theme that the framers were practical men of affairs, not philosophers or designers concerned with every last detail.  Considerations such as the legitimacy of the Constitution and how it should be interpreted were certainly not irrelevant, but were subordinated to the larger political and policy struggle between Federalists and Antifederalists.  Certainly the immediacy of the economic concerns of both sides should impress any reader as well as the cut and thrust of the fight over ratification.

With respect to the ratification struggle Federalists had a distinct advantage, for all that Klarman makes of the narrowness and contingency of their victory.  Klarman’s judicious book gives due attention to the arguments of both sides, but it seems to me they were not evenly balanced.  In particular, Antifederalists had no answer for the problems the US faced abroad because of the defects of the Articles.  Klarman portrays the Federalists as both nationalists and anti-democrats.  But a degree of nationalism was pretty clearly required if the Union was to succeed at all.  The Framers’ “anti-democratic” tendencies often amounted to little more than their rejection of eighteenth-century nostrums such as rotation in office and the recall.  Their rejection seems to me to be means to nationalist ends, rather than malign attempts to remake American politics in an elitist direction.  And surely the Antifederalist faith in these measures was misplaced.  Our politics today is surely more democratic than that of the eighteenth century, but we have wisely laid aside recourse to these aspects of Antifederalist conventional wisdom.

Another deficiency in Antifederalist thinking that Klarman documents in great detail was their tendency to assume that only legal checks were relevant, that political checks such as elections would count for nothing in controlling the excesses of the new government.  Antifederalists worried about undermining the militia or direct taxes, but rarely stopped to think that if such measures were truly unpopular, then they would not be enacted.  In fact, at times Antifederalists appear to be the forerunners of today’s Tea Party, also notable for its lack of basic trust in our political institutions.

So I came away from Klarman’s book even less impressed with the quality of Antifederalist thinking and with a renewed respect for the cogency of the Federalist project.  It is important to realize, however, that the Antifederalists may well have had the last laugh.  In his last chapter, Klarman discusses how Antifederalists accommodated themselves to the Constitution by folding their strict constructionist perspective into its framework.  Perhaps there was no real “revolution” in 1800, but there most assuredly was what might be called a Jeffersonian transition, in which the Constitution took on a fundamentally different character than that planned by Federalists at Philadelphia.  One of the signal virtues of Klarman’s book is that he greatly improves our understanding of just how far the nation traveled with respect to views about the purpose and interpretation of the Constitution from September 1787 to March 1801.

The Constitution as Political Project


In his outstanding book The Framers’ Coup, Michael Klarman’s great objective is to retrieve the immediate context in which the Constitution was adopted and so recover our most fundamental document as a Federalist political project.  To this objective Klarman brings a compelling combination of historical insight and lawyerly thoroughness, confirming his status as one of our leading legal historians.  His careful treatment of the multiple chains of argument that surrounded the making of the Constitution results in a memorable volume that will be consulted for years.

I have to admit to wondering whether Klarman could add anything new to the many prior works on the adoption of the Constitution.  I’m happy to be proved wrong.  One of the most striking examples comes early, as Klarman provides the most detailed yet balanced discussion I have read of the many difficult issues facing the United States under the Articles of Confederation.  These issues were both internal, with respect to how the states related to each other and external, as the US could not fulfill its obligations under the treaties it had signed and still faced a dangerous situation, in effect surrounded by the European great powers.  At least in my reading of Klarman’s evidence, the Antifederalists were never able to formulate a compelling defense of the Articles, particularly with respect to America’s challenges in foreign affairs.

Another example is Klarman’s handling of Madison’s key role.  Some scholars have questioned Madison’s centrality, noting that Madison failed to prevail on several issues he saw as crucial in the Philadelphia Convention.  They have pointed as well to the relatively overlooked role of Madison’s opponents such as Roger Sherman of Connecticut.  To my mind, the sheer mass of evidence Klarman accumulates as to Madison’s contribution rebuilds the case that Madison, more than any other person, deserves the title of “Father of the Constitution.”  This is true not so much with respect to authorship of the text, but to Madison’s absolutely central place in the Federalist political project.  From beginning to end, from the Annapolis Convention to the Bill of Rights, Madison was not only there but always seemed to be the most prepared, the framer who kept his eye on all the moving parts.  Klarman restores Madison to his rightful place in the constitutional pantheon.

Emphasizing that the Constitution was a political project designed to cope with the defects of the Articles of Confederation means that in various ways, “theory” takes a backseat in Klarman’s account.  Klarman returns repeatedly to the theme that the framers were practical men of affairs, not philosophers or designers concerned with every last detail.  Considerations such as the legitimacy of the Constitution and how it should be interpreted were certainly not irrelevant, but were subordinated to the larger political and policy struggle between Federalists and Antifederalists.  Certainly the immediacy of the economic concerns of both sides should impress any reader as well as the cut and thrust of the fight over ratification.

With respect to the ratification struggle Federalists had a distinct advantage, for all that Klarman makes of the narrowness and contingency of their victory.  Klarman’s judicious book gives due attention to the arguments of both sides, but it seems to me they were not evenly balanced.  In particular, Antifederalists had no answer for the problems the US faced abroad because of the defects of the Articles.  Klarman portrays the Federalists as both nationalists and anti-democrats.  But a degree of nationalism was pretty clearly required if the Union was to succeed at all.  The Framers’ “anti-democratic” tendencies often amounted to little more than their rejection of eighteenth-century nostrums such as rotation in office and the recall.  Their rejection seems to me to be means to nationalist ends, rather than malign attempts to remake American politics in an elitist direction.  And surely the Antifederalist faith in these measures was misplaced.  Our politics today is surely more democratic than that of the eighteenth century, but we have wisely laid aside recourse to these aspects of Antifederalist conventional wisdom.

Another deficiency in Antifederalist thinking that Klarman documents in great detail was their tendency to assume that only legal checks were relevant, that political checks such as elections would count for nothing in controlling the excesses of the new government.  Antifederalists worried about undermining the militia or direct taxes, but rarely stopped to think that if such measures were truly unpopular, then they would not be enacted.  In fact, at times Antifederalists appear to be the forerunners of today’s Tea Party, also notable for its lack of basic trust in our political institutions.

So I came away from Klarman’s book even less impressed with the quality of Antifederalist thinking and with a renewed respect for the cogency of the Federalist project.  It is important to realize, however, that the Antifederalists may well have had the last laugh.  In his last chapter, Klarman discusses how Antifederalists accommodated themselves to the Constitution by folding their strict constructionist perspective into its framework.  Perhaps there was no real “revolution” in 1800, but there most assuredly was what might be called a Jeffersonian transition, in which the Constitution took on a fundamentally different character than that planned by Federalists at Philadelphia.  One of the signal virtues of Klarman’s book is that he greatly improves our understanding of just how far the nation traveled with respect to views about the purpose and interpretation of the Constitution from September 1787 to March 1801.

The Constitution as Political Project


In his outstanding book The Framers’ Coup, Michael Klarman’s great objective is to retrieve the immediate context in which the Constitution was adopted and so recover our most fundamental document as a Federalist political project.  To this objective Klarman brings a compelling combination of historical insight and lawyerly thoroughness, confirming his status as one of our leading legal historians.  His careful treatment of the multiple chains of argument that surrounded the making of the Constitution results in a memorable volume that will be consulted for years.

I have to admit to wondering whether Klarman could add anything new to the many prior works on the adoption of the Constitution.  I’m happy to be proved wrong.  One of the most striking examples comes early, as Klarman provides the most detailed yet balanced discussion I have read of the many difficult issues facing the United States under the Articles of Confederation.  These issues were both internal, with respect to how the states related to each other and external, as the US could not fulfill its obligations under the treaties it had signed and still faced a dangerous situation, in effect surrounded by the European great powers.  At least in my reading of Klarman’s evidence, the Antifederalists were never able to formulate a compelling defense of the Articles, particularly with respect to America’s challenges in foreign affairs.

Another example is Klarman’s handling of Madison’s key role.  Some scholars have questioned Madison’s centrality, noting that Madison failed to prevail on several issues he saw as crucial in the Philadelphia Convention.  They have pointed as well to the relatively overlooked role of Madison’s opponents such as Roger Sherman of Connecticut.  To my mind, the sheer mass of evidence Klarman accumulates as to Madison’s contribution rebuilds the case that Madison, more than any other person, deserves the title of “Father of the Constitution.”  This is true not so much with respect to authorship of the text, but to Madison’s absolutely central place in the Federalist political project.  From beginning to end, from the Annapolis Convention to the Bill of Rights, Madison was not only there but always seemed to be the most prepared, the framer who kept his eye on all the moving parts.  Klarman restores Madison to his rightful place in the constitutional pantheon.

Emphasizing that the Constitution was a political project designed to cope with the defects of the Articles of Confederation means that in various ways, “theory” takes a backseat in Klarman’s account.  Klarman returns repeatedly to the theme that the framers were practical men of affairs, not philosophers or designers concerned with every last detail.  Considerations such as the legitimacy of the Constitution and how it should be interpreted were certainly not irrelevant, but were subordinated to the larger political and policy struggle between Federalists and Antifederalists.  Certainly the immediacy of the economic concerns of both sides should impress any reader as well as the cut and thrust of the fight over ratification.

With respect to the ratification struggle Federalists had a distinct advantage, for all that Klarman makes of the narrowness and contingency of their victory.  Klarman’s judicious book gives due attention to the arguments of both sides, but it seems to me they were not evenly balanced.  In particular, Antifederalists had no answer for the problems the US faced abroad because of the defects of the Articles.  Klarman portrays the Federalists as both nationalists and anti-democrats.  But a degree of nationalism was pretty clearly required if the Union was to succeed at all.  The Framers’ “anti-democratic” tendencies often amounted to little more than their rejection of eighteenth-century nostrums such as rotation in office and the recall.  Their rejection seems to me to be means to nationalist ends, rather than malign attempts to remake American politics in an elitist direction.  And surely the Antifederalist faith in these measures was misplaced.  Our politics today is surely more democratic than that of the eighteenth century, but we have wisely laid aside recourse to these aspects of Antifederalist conventional wisdom.

Another deficiency in Antifederalist thinking that Klarman documents in great detail was their tendency to assume that only legal checks were relevant, that political checks such as elections would count for nothing in controlling the excesses of the new government.  Antifederalists worried about undermining the militia or direct taxes, but rarely stopped to think that if such measures were truly unpopular, then they would not be enacted.  In fact, at times Antifederalists appear to be the forerunners of today’s Tea Party, also notable for its lack of basic trust in our political institutions.

So I came away from Klarman’s book even less impressed with the quality of Antifederalist thinking and with a renewed respect for the cogency of the Federalist project.  It is important to realize, however, that the Antifederalists may well have had the last laugh.  In his last chapter, Klarman discusses how Antifederalists accommodated themselves to the Constitution by folding their strict constructionist perspective into its framework.  Perhaps there was no real “revolution” in 1800, but there most assuredly was what might be called a Jeffersonian transition, in which the Constitution took on a fundamentally different character than that planned by Federalists at Philadelphia.  One of the signal virtues of Klarman’s book is that he greatly improves our understanding of just how far the nation traveled with respect to views about the purpose and interpretation of the Constitution from September 1787 to March 1801.

The Constitution as Political Project


In his outstanding book The Framers’ Coup, Michael Klarman’s great objective is to retrieve the immediate context in which the Constitution was adopted and so recover our most fundamental document as a Federalist political project.  To this objective Klarman brings a compelling combination of historical insight and lawyerly thoroughness, confirming his status as one of our leading legal historians.  His careful treatment of the multiple chains of argument that surrounded the making of the Constitution results in a memorable volume that will be consulted for years.

I have to admit to wondering whether Klarman could add anything new to the many prior works on the adoption of the Constitution.  I’m happy to be proved wrong.  One of the most striking examples comes early, as Klarman provides the most detailed yet balanced discussion I have read of the many difficult issues facing the United States under the Articles of Confederation.  These issues were both internal, with respect to how the states related to each other and external, as the US could not fulfill its obligations under the treaties it had signed and still faced a dangerous situation, in effect surrounded by the European great powers.  At least in my reading of Klarman’s evidence, the Antifederalists were never able to formulate a compelling defense of the Articles, particularly with respect to America’s challenges in foreign affairs.

Another example is Klarman’s handling of Madison’s key role.  Some scholars have questioned Madison’s centrality, noting that Madison failed to prevail on several issues he saw as crucial in the Philadelphia Convention.  They have pointed as well to the relatively overlooked role of Madison’s opponents such as Roger Sherman of Connecticut.  To my mind, the sheer mass of evidence Klarman accumulates as to Madison’s contribution rebuilds the case that Madison, more than any other person, deserves the title of “Father of the Constitution.”  This is true not so much with respect to authorship of the text, but to Madison’s absolutely central place in the Federalist political project.  From beginning to end, from the Annapolis Convention to the Bill of Rights, Madison was not only there but always seemed to be the most prepared, the framer who kept his eye on all the moving parts.  Klarman restores Madison to his rightful place in the constitutional pantheon.

Emphasizing that the Constitution was a political project designed to cope with the defects of the Articles of Confederation means that in various ways, “theory” takes a backseat in Klarman’s account.  Klarman returns repeatedly to the theme that the framers were practical men of affairs, not philosophers or designers concerned with every last detail.  Considerations such as the legitimacy of the Constitution and how it should be interpreted were certainly not irrelevant, but were subordinated to the larger political and policy struggle between Federalists and Antifederalists.  Certainly the immediacy of the economic concerns of both sides should impress any reader as well as the cut and thrust of the fight over ratification.

With respect to the ratification struggle Federalists had a distinct advantage, for all that Klarman makes of the narrowness and contingency of their victory.  Klarman’s judicious book gives due attention to the arguments of both sides, but it seems to me they were not evenly balanced.  In particular, Antifederalists had no answer for the problems the US faced abroad because of the defects of the Articles.  Klarman portrays the Federalists as both nationalists and anti-democrats.  But a degree of nationalism was pretty clearly required if the Union was to succeed at all.  The Framers’ “anti-democratic” tendencies often amounted to little more than their rejection of eighteenth-century nostrums such as rotation in office and the recall.  Their rejection seems to me to be means to nationalist ends, rather than malign attempts to remake American politics in an elitist direction.  And surely the Antifederalist faith in these measures was misplaced.  Our politics today is surely more democratic than that of the eighteenth century, but we have wisely laid aside recourse to these aspects of Antifederalist conventional wisdom.

Another deficiency in Antifederalist thinking that Klarman documents in great detail was their tendency to assume that only legal checks were relevant, that political checks such as elections would count for nothing in controlling the excesses of the new government.  Antifederalists worried about undermining the militia or direct taxes, but rarely stopped to think that if such measures were truly unpopular, then they would not be enacted.  In fact, at times Antifederalists appear to be the forerunners of today’s Tea Party, also notable for its lack of basic trust in our political institutions.

So I came away from Klarman’s book even less impressed with the quality of Antifederalist thinking and with a renewed respect for the cogency of the Federalist project.  It is important to realize, however, that the Antifederalists may well have had the last laugh.  In his last chapter, Klarman discusses how Antifederalists accommodated themselves to the Constitution by folding their strict constructionist perspective into its framework.  Perhaps there was no real “revolution” in 1800, but there most assuredly was what might be called a Jeffersonian transition, in which the Constitution took on a fundamentally different character than that planned by Federalists at Philadelphia.  One of the signal virtues of Klarman’s book is that he greatly improves our understanding of just how far the nation traveled with respect to views about the purpose and interpretation of the Constitution from September 1787 to March 1801.