Date: 20010412
Docket: A-302-99
Neutral citation: 2001 FCA 115
CORAM: RICHARD C.J.
SHARLOW J.A.
BETWEEN:
DIANE NISHRI
Applicant
- and -
THE QUEEN
Respondent
Heard at Toronto, Ontario, on February 23, 2001.
Judgment delivered at Ottawa, Ontario, on April 12, 2001.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: RICHARD C.J.
SHARLOW J.A.
Date: 20010412
Docket: A-302-99
Neutral citation: 2001 FCA 115
CORAM: RICHARD C.J.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
DIANE NISHRI
Applicant
- and -
THE QUEEN
Respondent
A. INTRODUCTION
[1] On September 5, 1990, Diane Nishri gave birth to a baby. On November 18, 1990, important amendments to the Unemployment Insurance Act came into effect. Ms. Nishri applied for the parental leave benefits provided by the amendments.
[2] Her request was refused on the ground that, under the transitional provisions, her eligibility for parental leave had to be determined under the law as it was before November 18, which entitled her to the maternity leave benefits that she was receiving, but not to parental leave benefits as well.
[3] Ms. Nishri appealed to a Board of Referees against the refusal to grant her parental leave benefits, but her appeal was dismissed. She appealed the Board's decision to the Umpire, but this appeal, too, was dismissed: CUB 23962E.
[4] Ms. Nishri alleges that, by subjecting her claim to the law as it was before the 1990 amendments, the transitional rules are unconstitutional as applied to her because they violate the right to equality guaranteed by section 15 of the Canadian Charter of Rights and Freedoms. In particular, she submits, the law treated her, as a birth mother, less favourably than an adoptive mother, and it had a disproportionately adverse effect on women as compared to men.
[5] Ms. Nishri concedes that, if the impugned transitional provisions validly exclude her from eligibility under the new rules enacted in 1990, she is not entitled to parental leave benefits, and her application for judicial review must fail. Counsel for the Crown concedes that, if Ms. Nishri's claim for parental leave benefits had to be decided under the statutory scheme that came into effect on November 18, 1990, she would have been eligible to receive them. Hence, the main question to be decided by this Court is whether the Umpire erred in law when she concluded that, in denying Ms. Nishri parental leave benefits, the transitional provisions did not violate her constitutional right to equality.
[6] If successful on the main question, Ms. Nishri requests both a declaration that the impugned provisions are invalid and monetary compensation equal to the value of the parental leave benefits that she says that she was wrongfully denied, together with interest.
[7] I should add by way of introduction that Ms. Nishri, who is not a lawyer, has ably represented herself throughout these proceedings, with the assistance of her husband, who is not a lawyer either. The written materials filed with the Court in support of the application for judicial review are extremely thorough and have been of great assistance. However, for the reasons that follow, I have not been persuaded that the Umpire's decision was erroneous in law.
B. STATUTORY BACKGROUND
(i) introduction
[8] The amendments to the Unemployment Insurance Act that came into effect on November 18, 1990, made important changes to many aspects of the statutory scheme. Those dealing with parental leave were enacted in the wake of the decision in Schachter v. Attorney General of Canada, [1988] 3 F.C. 515 (F.C.T.D.), aff'd. [1990] 2 F.C. 129 (F.C.A.), rev'd. [1992] 2 S.C.R. 679 (S.C.C.). In this case, Strayer J. (as he then was) held that the pre-1990 statutory provisions respecting parental leave violated section 15 of the Canadian Charter of Rights and Freedoms. While either adoptive parent was eligible for parental leave benefits when remaining at home to care for a newly adopted child, only the birth mother, and not the father, of a newborn could claim benefits for interruption to employment following the birth of a child.
[9] The legal question raised by the present case is whether Parliament succeeded in remedying the constitutional defect in the Act identified by Strayer J. in Schachter, supra. The applicant maintains that it did not because, as a mother who had given birth to a child in September 1990, and who was in receipt of maternity benefits when the amendments to the Act came into effect, she was ineligible for parental leave benefits. She alleges that the transitional provisions of the amended legislation discriminated against her as a birth mother and as a woman, because an adoptive mother otherwise in her situation would be entitled to parental leave, and because biological fathers of children born at the same time as hers were more likely than birth mothers of such children to be able to qualify for parental leave.
[10] Both the Umpire and counsel for the Commission emphasized the complexity of the statutory provisions respecting entitlement to unemployment insurance benefits. However, at the risk of over simplifying matters I shall set out my understanding of the essential framework of the relevant legislation as it relates to this case. I shall deal, first, with the Act as it was immediately before the 1990 amendments came into effect ("the old rules"), then with the statutory regime created by the 1990 amendments ("the new rules") and, finally, with the provisions for determining which claims were governed by the old rules, and which by the new rules ("the transitional rules").
(ii) the old rules
[11] Under the old rules, a woman who qualified for benefits under the unemployment insurance scheme was entitled to fifteen weeks of maternity benefits which she could start no earlier than eight weeks prior to the expected date of delivery, and which had to end no more than seventeen weeks after the birth of the child (subsection 18(2)). The discrepancy between the fifteen weeks of benefits and the fact that benefits must cease no later than seventeen weeks after the birth is that claimants do not start receiving benefits until two weeks after the commencement of the benefit period (section 12).
[12] An adoptive parent was entitled to fifteen weeks of adoption leave, ending no later than seventeen weeks from the time when the child was placed in their home for adoption, if the parent could prove that the placement of the child made it reasonable for him or her to remain at home (subsections 20(1) and (2)).
[13] Eligibility for these and other unemployment insurance benefits was also conditional on the claimant's satisfying general qualifying criteria. For example, claimants were limited to fifteen weeks of benefits in any benefit period for special benefit claims made as a result of unemployment arising from, among other things, a prescribed illness, injury, pregnancy or placement of an adopted child (paragraph 11(3)(a)).
[14] This was, in substance, the regime challenged in Schachter, supra, where a biological father alleged that, unlike adoptive parents, natural parents did not have the option of the father's taking fifteen weeks of leave following the birth of their child.
(iii) the new rules
[15] Under the new rules that came into effect on November 18, 1990, birth mothers continued to be entitled to fifteen weeks of maternity leave (paragraph 11(3)(a)). In addition, natural and adoptive parents were entitled to ten weeks of parental leave (paragraph 11(3)(b)), which could be taken at any time within a year from the date of the child's birth or from the placement of the child in the claimants' home (subsection 20(2)). A couple could choose which of them would take the ten weeks of parental leave, or they could divide it between themselves (subsection 20(4)).
[16] Thus, the new rules respecting parental leave treated adoptive parents and biological parents in the same manner, and allowed mothers and fathers to choose how they wished to divide their leave. In addition, they continued to provide a separate maternity leave for birth mothers.
[17] As I have already noted, if the new rules had applied to Ms. Nishri, she would have been entitled to ten weeks of parental leave at the expiry in December 1990 of her fifteen weeks of maternity leave. The new rules increased the previous statutory cap of fifteen weeks for "special" benefits including maternity and parental leave, to a total of twenty five.
(iv) the transitional rules
[18] This case turns on the constitutionality of section 56 of the 1990 amendments to the Unemployment Insurance Act. This is the transitional provision that bridged from the old rules to the new rules when the amending statute (S.C. 1990, c. 40) came into effect on November 18, 1990.
[19] Parliament selected two criteria for determining whether a claimant's eligibility would be decided under the old rules or under the new rules. First, the claims of those who had already established a benefit period before November 18, 1990 would continue to be subject to the old rules (subsection 56(1)). Other claims were governed by the new rules. Second, claimants whose child was born, or was placed in their home for adoption, after November 18, 1990, were subject to the new rules, even if they had established a benefit period before the new rules came into effect (subsection 56(5)).
[20] Ms. Nishri's claim to parental leave was determined under the old rules because she could satisfy neither of the conditions that triggered the application of the new rules. That is, she had established a benefit period before November 18, 1990 when she claimed maternity benefits and her child had been born before that date.
[21] Parental leave was not available to biological fathers before November 18, 1990, the precise complaint made by the applicant in Schachter, supra. However, the transitional provisions benefited the Nishris because they enabled Mr. Nishri to claim ten weeks of parental leave. This was because, since he had not established a benefit period on November 18, 1990 and was otherwise eligible for benefits under the general provisions of the Unemployment Insurance Act, his claim to parental leave would have been determined under the new rules.
[22] However, Mr. Nishri did not claim parental leave benefits. The Nishris had decided that it would be in the best interests of their family for Ms. Nishri to stay at home after the expiry of her maternity benefits in December 1990 in order to continue to nurture their child.
(v) statutory and constitutional provisions
[23] For ease of reference, I set out below the statutory and constitutional provisions relevant to this application, starting with those in force immediately prior to the enactment of the amendments that came into force on November 18, 1990. These are the provisions that have been held to apply to Ms. Nishri's claim for parental leave, and that I have called the "old rules".
Unemployment Insurance Act, 1971, R.S.C. 1985, c. U-1.
| 11. (1) When a benefit period has been established for a claimant, initial benefit may, subject to subsection (2), be paid to him for each week of unemployment that falls in the benefit period. (2) The maximum number of weeks for which initial benefit may be paid in a benefit period is the number of weeks of insurable employment of the claimant in his qualifying period or twenty-five, whichever is the lesser. (3) Notwithstanding subsection (2), the maximum number of weeks for which initial benefit may be paid to a claimant (a) in any benefit period for reasons of pregnancy, placement of a child or children for the purpose of adoption, prescribed illness, injury or quarantine or any combination thereof, or (b) in respect of a single pregnancy or a single placement of a child or children for the purpose of adoption, is fifteen. 12. A claimant is not entitled to be paid benefit in a benefit period until following the commencement of that benefit period he has served a two week waiting period that begins with a week of unemployment for which benefit would otherwise be payable. |
11. (1) Lorsqu'une période de prestations a été établie au profit d'un prestataire, des prestations initiales peuvent, sous réserve du paragraphe (2), lui être versées pour chaque semaine de chômage comprise dans cette période. (2) Le nombre maximal de semaines pour lesquelles des prestations initiales peuvent être versées au cours d'une période de prestations est le nombre de semaines où le prestataire a occupé un emploi assurable au cours de sa période de référence ou vingt-cinq, le nombre le moins élevé étant retenu. (3) Nonobstant le paragraphe (2), est de quinze le nombre maximal de semaines pour lesquelles des prestations initiales peuvent être versées à un prestataire : a) soit au cours de toute période de prestations à la suite d'une maladie, blessure ou mise en quarantaine prévue par les règlements, d'une grossesse ou du placement d'un ou plusieurs enfants en vue de leur adoption ou l'une et l'autre de celles-ci; b) soit relativement à une seule grossesse ou à un seul placement d'un ou plusieurs enfants en vue de leur adoption. 12. Au cours d'une période de prestations, un prestataire n'est pas admissible au service de prestations tant qu'il ne s'est pas écoulé, à la suite de l'ouverture de cette période de prestations, un délai de carence de deux semaines qui débute par une semaine de chômage pour laquelle des prestations devraient, sans cela, être versées. |
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| 18. (1) Notwithstanding section 14 but subject to this section, initial benefit is payable to a major attachment claimant who proves her pregnancy. (2) Subject to subsection 11(3), initial benefit is payable to a major attachment claimant under this section for each week of unemployment in the period (a) that begins (i) eight weeks before the week in which her confinement is expected, or (ii) with the week in which her confinement occurs, whichever is the earlier; and (b) that ends (i) with the week immediately preceding the first week for which benefit is claimed and payable pursuant to another section of this Part, or (ii) seventeen weeks after the later of (A) the week in which her confinement is expected, and (B) the week in which her confinement occurs, whichever is the earlier. ... |
18. (1) Nonobstant l'article 14 mais sous réserve des autres dispositions du présent article, des prestations initiales sont payables à une prestataire de la première catégorie qui fait la preuve de sa grossesse. (2) Sous réserve du paragraphe 11(3), les prestations initiales prévues au présent article sont payables à une prestataire de la première catégorie pour chaque semaine de chômage comprise dans la période qui, en retenant la première en date des semaines en question : a) commence : (i) soit huit semaines avant la semaine présumée de son accouchement, (ii) soit avec la semaine de son accouchement; b) se termine : (i) soit avec la semaine qui précède immédiatement la première semaine où les prestations sont demandées et payables en vertu d'une autre disposition de la présente partie, (ii) soit dix-sept semaines après la dernière des deux semaines suivantes : (A) la semaine présumée de son accouchement, (B) la semaine de son accouchement. ... |
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| 20. (1) Notwithstanding section 14 but subject to this section, initial benefit is payable to a major attachment claimant who proves that it is reasonable for that claimant to remain at home by reason of the placement with that claimant of one or more children for the purpose of adoption pursuant to the laws governing adoption in the province in which that claimant resides. (2) Subject to subsection 11(3), initial benefit is payable under this section for each week of unemployment in the period (a) that begins with the week in which the child or children are actually placed with the major attachment claimant; and (b) that ends (i) seventeen weeks after the week in which the child or children are so placed, (ii) with the week in which it is no longer reasonable for the claimant to remain at home for the reason referred to in subsection (1), or (iii) with the week immediately preceding the week for which benefit is claimed and payable pursuant to another provision of this Part, whichever is the earliest. |
20. (1) Nonobstant l'article 14 mais sous réserve des autres dispositions du présent article, des prestations initiales sont payables à un prestataire de la première catégorie qui fait la preuve qu'il est raisonnable pour lui de demeurer à la maison à cause du placement auprès de lui, en conformité avec les lois régissant l'adoption dans la province où il réside, d'un ou plusieurs enfants en vue de leur adoption. (2) Sous réserve du paragraphe 11(3), les prestations initiales prévues au présent article sont payables pour chaque semaine de chômage comprise dans la période qui, en retenant la première en date des semaines en question : a) commence avec la semaine au cours de laquelle le ou les enfants sont réellement placés auprès de lui ; b) se termine : (i) soit dix-sept semaines après la semaine au cours de laquelle le ou les enfants sont ainsi placés, (ii) soit avec la semaine au cours de laquelle il n'est plus raisonnable pour ce prestataire de demeurer à la maison pour la raison visée au paragraphe (1), (iii) soit avec la semaine qui précède immédiatement la semaine où les prestations sont demandées et payables en vertu d'une autre disposition de la présente partie. |
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[24] The following provisions came into effect in November 18, 1990. With the exception of section 56, they amend the previous Act and constitute what I have called the "new rules". These are the rules that Ms. Nishri submits govern her claim.
[25] Section 56 contains the criteria for determining whether a claim is to be decided under the old rules or the new rules. They comprise what I have called "the transitional rules" and Ms. Nishri challenges their constitutionality as applied to her.
An Act to amend the Unemployment Insurance Act and the Employment and Immigration Department and Commission Act, S.C. 1990, c. 40.
| 9. Section 11 of the said Act is repealed and the following substituted therefor: "11. (1) Where a benefit period has been established for a claimant, benefit may be paid to the claimant for each week of unemployment that falls in the benefit period, subject to the maximums established by this section. (2) The maximum number of weeks for which benefit may be paid in a benefit period for any reasons other than those referred to in subsection (3) shall be determined in accordance with Table 2 of the schedule by reference to the regional rate of unemployment that applies to the claimant and the number of weeks of insurable employment of the claimant in the claimant's qualifying period. (3) Subject to subsection (7), the maximum number of weeks for which benefit may be paid in a benefit period (a) for the reason of pregnancy is fifteen; (b) for the reason of caring for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption is ten; and (c) for the reason of prescribed illness, injury or quarantine if fifteen. |
9. L'article 11 de la même loi est abrogé et remplacé par ce qui suit : « 11. (1) Une fois la période de prestations établie, des prestations peuvent, à concurrence des maximums prévus au présent article, être versées au prestataire pour chaque semaine de chômage comprise dans cette période. (2) Le nombre maximal de semaines pendant lesquelles des prestations peuvent être versées au cours d'une période de prestations -- à l'exception de celles qui peuvent être versées pour l'une des raisons prévues au paragraphe (3) -- est déterminé selon le tableau 2 de l'annexe en fonction du taux régional de chômage applicable au prestataire et du nombre de semaines pendant lesquelles il a occupé un emploi assurable au cours de la période de référence. (3) Sous réserve du paragraphe (7), le nombre maximal de semaines pendant les-quelles des prestations peuvent être versées au cours d'une période de prestations est : a) dans le cas d'une grossesse, quinze semaines; b) dans le cas de soins à donner à un ou plusieurs nouveau-nés du prestataire ou à un ou plusieurs enfants placés chez le prestataire en vue de leur adoption, dix semaines; c) dans le cas de maladie, blessure ou mise en quarantaine prévue par les règlements, quinze semaines. |
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| 14. (1) Subsections 20(1) and (2) of the said Act are repealed and the following substituted therefor: "20. (1) Notwithstanding section 14, but subject to this section, benefit is payable to a major attachment claimant to remain at home to care for one or more new-born children of that claimant or one or more children placed with that claimant for the purpose of adoption pursuant to the laws governing adoption in the province in which that claimant resides. (2) Subject to section 11, benefit under this section is payable for each week of unemployment in the period (a) that begins with the week in which the new-born child or children arrive at the claimant's home or the child or children are actually placed with the claimant for the purpose of adoption; and (b) that ends fifty-two weeks after the week in which the new-born child or children arrive at the claimant's home or the child or children are actually placed with the claimant for the purpose of adoption." (2) Subsections 20(4) and (5) of the said Act are repealed and the following substituted therefor: "(4) Weeks of benefit payable under this section may be divided between the parents of the child or children." |
14. (1) Les paragraphes 20(1) et (2) de la même loi sont abrogés et remplacés par ce qui suit : « 20. (1) Par dérogation à l'article 14 mais sous réserve des autres dispositions du présent article, des prestations sont payables à un prestataire de la première catégorie pour demeurer à la maison pour prendre soin de son ou de ses nouveau-nés ou d'un ou plusieurs enfants placés auprès de lui en vue de leur adoption, en conformité avec les lois régissant l'adoption dans la province où il réside. (2) Sous réserve de l'article 11, les prestations visées au présent article sont payables pour chaque semaine de chômage comprise dans la période qui : a) commence avec la semaine au cours de laquelle le ou les nouveau-nés arrivent à la maison ou le ou les enfants sont réellement placés auprès du prestataire en vue de leur adoption; b) se termine cinquante-deux semaines après la semaine au cours de laquelle le ou les nouveau-nés arrivent à la maison ou le ou les enfants sont ainsi placés. » (2) les paragraphes 20(4) et (5) de la même loi sont abrogés et remplacés par ce qui suit : « (4) Les semaines de prestations payables en vertu du présent article peuvent être partagées entre le père et la mère. » |
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| 56. (1) Subject to subsections (2) to (5), any provision of the Unemployment Insurance Act repealed by a provision of this Act continues to apply to any claimant for whom a benefit period was established before the provision was repealed. ... (5) Where a claimant has established a benefit period before the coming into force of section 14, and the claimant would have been entitled to benefit under section 20 of the Unemployment Insurance Act, as amended by section 14, if the benefit period had been established after its coming into force, the claimant shall be entitled to benefit under the amended section 20 as if the benefit period had been established after the coming into force of section 14, subject to the following conditions: (a) the claimant must have made a claim for benefit under the amended section 20 within the benefit period and must not be qualified to establish a benefit period as a major attachment claimant at the time of making the claim; (b) the child or children in respect of whom the claim is made must have been born, or actually placed with the claimant for adoption, after the coming into force of section 14; (c) the claimant shall not be entitled to a greater number of weeks of benefit than the claimant would have been entitled to before the coming into force of section 14; (d) where the claimant has, during the benefit period, received benefit under sections 20 to 20.2 of the Unemployment Insurance Act, as it read immediately before the coming into force of section 14, the number of weeks of that benefit shall be deducted from the number of weeks of benefit to which the claimant would otherwise be entitled by virtue of this subsection; and ... |
56. (1) Sous réserve des paragraphes (2) à (5), les dispositions de la Loi sur l'assurance-chômage abrogées par la présente loi continuent de s'appliquer au prestataire à l'égard duquel une période de prestations est établie avant leur abrogation. ... (5) Lorsqu'une période de prestations est établie au profit d'un prestataire avant l'entrée en vigueur de l'article 14 et que le prestataire aurait eu droit à des prestations en vertu de l'article 20 de la Loi sur l'assurance-chômage, modifié par l'article 14, si la période de prestations était établie après cette entrée en vigueur, le prestataire a droit aux prestations prévues par l'article 20 de cette loi, dans sa version modifiée, comme si la période de prestations était établie après l'entrée en vigueur de l'article 14, sous réserve des conditions suivants : a) le prestataire doit avoir présenté une demande de prestations en vertu de l'article 20, dans sa version modifiée, au cours de sa période de prestations et ne doit pas remplir les conditions requises pour qu'une période de prestations soit établie en sa faveur à titre de prestataire de la première catégorie; b) le ou les enfants à l'égard desquels la demande est présentée doivent être nés ou placés chez le prestataire en vue de leur adoption après l'entrée en vigueur de l'article 14; c) le prestataire n'a pas droit à un nombre de semaines de prestations supérieur à celui auquel il aurait eu droit avant l'entrée en vigueur de l'article 14; d) lorsque le prestataire a, durant sa période de prestations, reçu des prestations en vertu des articles 20 à 20.2 de la Loi sur l'assurance-chômage dans sa version antérieure à l'entrée en vigueur de l'article 14, le nombre de semaines durant lesquelles il les a reçues est déduit du nombre de semaines de prestations auquel il a droit en vertu du présent paragraphe; |
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[26] Finally, the Charter provision relevant to this application is as follows.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
| 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. |
15. (1) La Loi ne fait acception de personne et s'applique Également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques. |
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C. ANALYSIS
[27] I start with a consideration of Strayer J.'s decision in Schachter, supra, on which the appellant essentially rests her argument. At first blush, the decision would seem distinguishable because the issue raised in that case was whether it was a breach of section 15 for Parliament to deny to a natural father a right to unemployment insurance benefits while he remained at home to care for his newborn child, a right afforded to adoptive fathers. Our case is different in that Mr. Nishri was entitled under the new rules to parental leave benefits, but elected not to claim them.
[28] However, it is clear that Strayer J. did not think that the defect in the impugned legislation could be cured by simply giving to natural fathers the right to parental leave. He granted a declaration (at page 544), which he suspended pending legislative amendment of the scheme, that, so long as the provisions concerning adoptive parents' entitlement to parental leave were in place,
a claimant who is the natural father or mother of a newborn child shall be entitled to benefits under the Unemployment Insurance Act, 1971 in respect of periods taken off work to care for that child on the same terms as adoptive parents are so entitled. (Emphasis added)
[29] He also considered the impact of the cap of fifteen weeks on special benefits then in effect, which, if continued, would prevent a birth mother from claiming both maternity and parental leave benefits. He concluded that, since maternity benefits were granted, not for child care purposes, but because of the physical effects of the latter stage of pregnancy and the post-natal period on the ability of a woman to work, to limit birth mothers to a maximum of fifteen weeks of benefits would achieve only formal equality between natural and adoptive parents. Accordingly, he said (at page 546):
in any amended regime designed to achieve equality for natural parents, the natural mother should not be precluded from entitlement to child-care benefits, in whole or in part, by reason of having received pregnancy benefits within the same period.
[30] In other words, Strayer J. was of the opinion that maternity benefits were granted because of the physical effects of the latter weeks of pregnancy and of child birth, while the parental leave benefits were available to adoptive parents for child care purposes. Hence, as long as parental leave benefits were granted to adoptive parents, it would be unconstitutional to refuse these benefits to a birth mother on the ground that her receipt of maternity benefits, granted for a purpose applicable only to pregnant women, exhausted the maximum number of weeks of benefits that she could claim in a single benefit period.
[31] However, Strayer J.'s decision must be considered in light of subsequent events. First, the Crown did not appeal the validity of the impugned provision, but confined itself to the propriety of the remedy granted: [1990] 2 F.C. 129 (F.C.A.), rev'd. [1992] 2 S.C.R. 679 (S.C.C.). Writing for the majority in the Supreme Court of Canada, Lamer C.J. expressed dissatisfaction (at page 695) with the Crown's refusal to put the section 15 issue before the Court. In separate concurring reasons, written for himself and L'Heureux-Dubé J., La Forest J. went further and expressly doubted (at page 727) whether Strayer J. was correct on section 15. In my opinion, these comments inevitably weaken the support that the appellant can derive from Strayer J.'s decision in Schachter, supra. Moreover, the breach of section 15 conceded on appeal by the Crown was remedied by the Supreme Court by reading out the under inclusive provisions, not by granting a declaration of the kind awarded by Strayer J.
[32] Second, the authoritativeness of Strayer J.'s decision is further limited by the Supreme Court's subsequent elaboration of the constitutional concept of equality embodied in section 15, especially in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, and by the application of that jurisprudence by this Court in Sollbach v. Canada (1999), 252 N.R. (F.C.A.), where the Court upheld the validity of a statutory cap on the number of weeks of unemployment insurance benefits that a person could claim, even though its effect on the applicant, a birth mother, was to reduce the length of the parental leave to which she was entitled.
[33] Under the legislation then in force, the applicant in Sollbach, supra, was entitled to twenty-seven weeks of regular unemployment insurance benefits in a single benefit period. After taking eighteen weeks of benefits while she was looking for work, the applicant requested that they be converted to maternity benefits as she had become pregnant. Benefit payments ceased after the applicant had received 12 weeks of maternity benefits since, when her weeks of regular benefits were added to her weeks of maternity benefits, she had reached the cap of thirty weeks then applicable to maternity and parental leave benefits.
[34] The applicant argued that the thirty weeks cap could not constitutionally limit her entitlement to full maternity benefits and parental leave, because, as only women can become pregnant, the cap had a disproportionately adverse effect on women. In other words, the applicant submitted that pregnant women were entitled to full maternity and parental leave benefits, in addition to the twenty-seven weeks of "regular" benefits available for other interruptions of employment as a result of "involuntary" unemployment at a time when the claimant was available for work.
[35] In giving the judgment of the Court, McDonald J.A. rejected the applicant's argument, on the ground that the benefits cap was of more general application to claimants for special benefits Thus, he said (at paragraph 9):
Pregnant women are treated exactly the same as men and women on parental leave and the same as men and women who suffer from disability. All are limited to a maximum of 30 weeks of compensation.
[36] The Court also rejected the claim on the basis of Law, supra, since, even if the statute had a disproportionately adverse effect on women, as the applicant contended, it could not be said, in Iacobucci J.'s words in Law, supra (at page 529), that any distinctions between men and women under these provisions of the Unemployment Insurance Act, represented
differential treatment [that] reflects the stereotypical application of some presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or worthy of recognition or value as a member of Canadian society.
[37] Further, McDonald J.A. noted that the provisions relating to maternity benefits entitled the applicant to three more weeks of benefit than were available to claimants for regular unemployment insurance benefits, and were thus ameliorative in nature. In Law, supra, Iacobucci J. had stated (at pages 539-540) that the ameliorative character of a statutory provision supported the conclusion that it did not violate essential human dignity.
[38] Sollbach, supra, was not included in the respondent's book of authorities and, since it seemed on point, the Court drew the attention of counsel to it and asked for written submissions. Having considered those submissions, I am of the opinion that Sollbach, supra, is relevant to the issues raised in this application and effectively limits the applicability of Strayer J.'s decision in Schachter, supra, even though the Court did not refer to it.
[39] First, its determination that the cap on the duration of unemployment insurance benefits did not discriminate against women because it applied to a number of benefits payable under the Act is equally applicable to the transitional provision impugned in this case. With some exceptions, subsection 56(5) is of general application to all special benefits and excludes from the new rules claimants who, on November 18, 1990, had already established a benefit period under the old rules.
[40] Second, McDonald J.A.'s conclusion that, if the cap on benefits had a disproportionately adverse impact on women, it did not satisfy the Law, supra, test of discrimination seems equally applicable to the impugned provision in the present case. To limit birth mothers to fifteen weeks of maternity benefits cannot reasonably be regarded as pernicious stereotyping or the denial of a birth mother's worth, even though adoptive parents were given child care leave and it might be easier in fact for biological fathers than for birth mothers to qualify for it.
[41] Third, also applicable to this case is the admonition in Law, supra, relied on in Sollbach, supra, that the ameliorative character of a provision in a statute is an indication that it does not violate section 15. Hence, since one of the bases of the attack in Schachter, supra, on the denial of parental leave to biological fathers was that it effectively denied women the choice of returning to work, or the opportunity of sharing responsibility for caring for other children in the family, the extension of parental leave to biological fathers in the 1990 amendments ameliorated the position of women. Further, birth mothers whose babies were born after November 18, 1990 or who had not established a benefit period by that date were entitled to both maternity and parental leave. This is evidence that the application of the old rules to Ms. Nishri did not discriminate against her on the ground of sex in the constitutional sense, even though it may have been easier for biological fathers than for birth mothers to qualify for parental leave.
[42] Furthermore, this case concerns provisions that are transitional in nature. Especially in the context of complex statutory schemes, such as unemployment insurance, where the total cost of the programme is a relevant consideration in its design, Parliament should be given a degree of latitude in determining where to draw the line between benefit claims falling under the old and under the new rules, an exercise that is almost bound to seem arbitrary to those falling on the wrong side of the line.
[43] Thus, if Ms. Nishri's baby had been born ten weeks later, or she had delayed her application for maternity leave, she would have been eligible for parental leave. However, this is not a basis for establishing a violation of the constitutional right to equality and freedom from discrimination. For a court to engage in constitutional tinkering with complex, interlocking statutory provisions in an attempt to cure an apparent arbitrariness in the operation of a justifiable cut-off in a benefits scheme is all too likely to create unforeseen anomalies of its own, even when the adverse effects of the impugned provision are not undifferentiated in their impact.
D. CONCLUSIONS
[44] For these reasons, I would dismiss the application for judicial review but, in all the circumstances, without costs.
"John M. Evans"
J.A.
"I agree
J. Richard C.J."
"I agree
K. Sharlow J.A."