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Constitutional law —Bill of Rights — Sex discrimi­nation Equality before the law — Section 46 of Unemployment Insurance Act not rendered inoperative by Canadian Bill of Rights — Unemployment Insur­ance Act, 1971, 1970-71-72 (Can.), c. 48, ss. 30, 46 — Canadian Bill of Rights, R.S.C. 1970, App, III, s. 1(b).

Sections 30 and 46 of the Unemployment Insurance Act, 1971, 1970-71-72 (Can.), c. 48, are concerned with the entitlement of women to benefits during a specified part of the period of pregnancy and childbirth. Pregnant women who can meet the conditions specified in s. 30(1) are entitled to the special benefits which that section provides during the period referred to in s. 30(2) that begins eight weeks before the confinement is expected and ends six weeks after the week in which it occurs. These benefits are payable irrespective of whether or not the claimant is capable of and available for work during that period.

In accordance with the provisions of s. 46, the extended benefits made available to all pregnant women under s. 30 are accompanied by a concomitant limitation of entitlement which excludes these women from any ben­efits under the Act during the period not exceeding 15 weeks that commences eight weeks before her confinement is expected and terminates six weeks after the week in which it occurs unless she can comply with the condition of entitlement specified in s. 30(1). Under the two sections taken together, the governing condition of entitlement in respect of "unemployment caused by pregnancy" is the fulfilment of the condition established in s. 30(1) and unless a claimant has had the "ten weeks of insurable employment" thereby required, she is entitled to no benefits during the period specified in s. 46.

The present appellant's "interruption of employment" occurred four days before the birth of her child and was therefore clearly "unemployment caused by

[Page 184]

pregnancy", but she had not fulfilled the conditions required by s. 30(1) when she applied for unemployment insurance six days later. For this reason both the Com­mission and the Board of Referees rejected her claim. An appeal from the decision of the Board of Referees was allowed by the Umpire who held that s. 46 was inoperative by reason of the provisions of s. 1(b) of the Canadian Bill of Rights in that it authorized discrimi­nation by reason of sex, and, as a consequence, abridged the right of equality of all claimants in respect of the .unemployment insurance legislation. The decision of the Umpire was set aside by the Federal Court of Appeal, whereupon the appellant appealed to this Court.

Held: The appeal should be dismissed.

Sections 30 and 46 constitute a complete code dealing exclusively with the entitlement of women to unemploy­ment insurance benefits during the specified part of the period of pregnancy and childbirth; these provisions form an integral part of a legislative scheme enacted for valid federal objectives and they are concerned with conditions from which men are excluded. Any inequality between the sexes in this area is not created by legisla­tion but by nature.

The contention that s. 46 denied "equality before the law" for the period therein specified to pregnant and child-bearing women who failed to fulfil the conditions required by s. 30(1) because it denied them the benefits available to all other claimants both male and female, who had eight weeks of insurable employment and who were capable of and available for work, was not accepted.

Section 46 forms an integral part of a valid scheme of legislation enacted by Parliament in discharge of its legislative authority under the British North America Act, and the limitation on entitlement to benefits for which the section provides is to be read in light of the additional benefits provided by the scheme as a whole and specifically by the provisions of s. 30 of the Act. Accordingly, s. 46 of the Unemployment Insurance Act as amended was not rendered inoperative by the Canadian Bill of Rights.

Regina v. Drybones, [1970] S.C.R. 282, distin­guished; Curr v. The Queen, [1972] S.C.R: 889; Attor­ney General of Canada v. Lavell - Isaac v. Bédard, [1974] S.C.R. 1349; The Queen v. Burnshine, [1975] 1 S.C.R. 693; Prata v. Minister of Manpower and Immi­gration, [1976] 1 S.C.R. 376, referred to.

[Page 185]

APPEAL from a judgment of the Federal Court of Appeal[1] allowing the respondent's appeal from the judgment of Collier J., sitting as an Umpire under the Unemployment Insurance Act, 1971, 1970-71-72 (Can.), c. 48, whereby he allowed an appeal from a decision of the Board of Referees and thereby held that s. 46 of the Act was inopera­tive by reason of the provisions of s. 1(b) of the Canadian Bill of Rights. Appeal dismissed.

John Nelligan, Q.C., Miss Lynn Smith and A. H. MacLean, for the appellant.

Derek Aylen, Q.C., and Miss L. S. Holland, for the respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought with leave of the Federal Court of Appeal from a judgment of that Court which set aside the judg­ment rendered by Mr. Justice Collier sitting as an Umpire under the Unemployment Insurance Act, 1971, 1970-71-72 (Can.), c. 48 (hereinafter called the "Act"), whereby he had allowed an appeal from a decision of the Board of Referees and had thereby held that s. 46 of the Act was inoperative by reason of the provisions of s. 1(b) of the Canadian Bill of Rights. Notice of the question to be determined on this appeal was directed to be served on the Attorney General of Canada and the Attorneys General of the Provinces by order of Mr. Justice Martland in the terms following:

Is section 46 of the Unemployment Insurance Act, S.C. 1971, as amended, rendered inoperative by the Canadi­an Bill of Rights, R.S.C. 1970, Appendix III, as amended?

The exclusive legislative authority of Parliament was extended by the British North America Act, 1940, 3-4 George VI, c. 36, which amended s. 91 of that Act by inserting therein Item 2A "Unem­ployment Insurance". In discharging the heavy financial burden involved in the exercise of the authority so conferred upon it, Parliament enacted the Unemployment Insurance Act by c. 44 of the Statutes of Canada 1940. In its original form which was maintained throughout a succession of confusing and sometimes obscure amendments, that Act retained its essential character as a

[Page 186]

scheme for the insurance of those unemployed members of the work force who fulfil the qualifica­tions therein specified.

Under the scheme embodied in the Act, the Government is cast in the role of an insurer and the individual unemployed members of the work force who have contributed by way of premiums and who have otherwise qualified to receive ben­efits are characterized as "beneficiaries". The Act is replete with references to the unemployed individuals who have fulfilled the statutory qualifi­cations as "the insured" and the payments to which such persons are entitled, under the Act are throughout referred to as "benefits".

It was, in my view, necessary for the effective exercise of the authority conferred by s. 91(2A) of the British North America Act that Parliament should prescribe, conditions of entitlement to the benefits for which the Act provides. The establishment of such conditions was an integral part of a legislative scheme enacted by Parliament for a valid federal purpose in the discharge of the consti­tutional authority entrusted to it under s. 91(2A) and the fact that this involved treating claimants who fulfil the conditions differently from those who do not, cannot, in my opinion, be said to invalidate such legislation.

The basic qualifications for the receipt of ben­efits are defined in s. 17 of the Act as follows:

17. (2) An insured person qualifies to receive ben­efits under this Act if he

(a) has had eight or more weeks of insurable employment in his qualifying period, and

(b) has had an interruption of earnings from employment.

A considerable number of conditions of disenti­tlement are engrafted on this broad base, the most all encompassing of which is found in s, '25 which provides as follows:

25. A claimant is not entitled to be paid benefit for any working day in an initial benefit period for which he fails to prove that he was either

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(a) capable of and available for work and unable to obtain suitable employment on that day, or

(b) incapable of work by reason of any prescribed illness, injury or quarantine on that day.

Other restrictions on entitlement to benefits are enumerated in s. 16(1)(a) where the word "disen­titled" is defined as follows:

16. (a) "disentitled" means to be disentitled under sections 23, 25, 29, 33, 361 44, 45, 46 or 54 or under a regulation;

The section forming the subject of this appeal is s. 46 and I think that its meaning and purpose can best be appreciated by considering it in conjunc­tion with s. 30. These two sections are concerned with the entitlement of women to benefits during a specified part of the period of pregnancy and childbirth and it must be' remembered that prior to the 1971 revision of the Act there was no provision made for any benefits being payable to such women who were not capable of and available for work during that period although pregnancy and childbirth did not exclude a woman from entitlement to the regular benefits for so long as she continued to be capable of and available for work within the meaning of s. 25. The two sections read as follows:

30. (1) Notwithstanding section 25 or 46 but subject to this section, benefits are payable to a major attachment claimant who proves her pregnancy, if she has had ten or more weeks of insurable employment in the twenty weeks that immediately precede the thirtieth week before her expected date of confinement; and for the purposes of this section, any weeks in respect of which the major attachment claimant has received ben­efits under this Act that immediately precede the thir­tieth week before her expected date of confinement shall be deemed to be weeks of insurable employment.

(2) Benefits under this section are payable for each week of unemployment in

(a) the fifteen week period that begins eight weeks before the week in which her confinement is expected, or

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(b) the period that begins eight weeks before the week in which her confinement is expected and ends six weeks after the week in which her confinement occurs,

whichever is the shorter, if such a week falls in her initial benefit period established pursuant to section 20 exclusive of any re-established period under section 32.

(3) When benefits are payable to a claimant in respect of unemployment caused by pregnancy and any allowances, monies or other benefits are payable in respect of that pregnancy to the claimant under a provincial law, the benefits payable to the claimant under this Act shall be reduced or eliminated as prescribed.

(4) For purposes of section 23, the provisions of section 25 do not apply to the two week period that immediately precedes the periods described in subsec­tion (2).

(5) If benefit is payable to a major attachment claimant under this section and earnings are received by that claimant for any period that falls in a week in the periods described in subsection (2), the provisions of subsection (2) of section 26 do not apply and all such earnings shall be deducted from the benefit paid for that week.

46. Subject to section 30, a claimant is not entitled to receive benefit during the period that commences eight weeks before the week in which her confinement for pregnancy is expected and terminates six weeks after the week in which her confinement occurs.

These sections served to reverse the situation which previously existed so that pregnant women who can meet the conditions specified in s. 30(1) are entitled to the special benefits which that section provides' during the period referred to in s. 30(2) that begins eight weeks before the confinement is expected and ends six weeks after the week in which it occurs. These benefits are payable irrespective of whether or not the claimant is capable of and available for work during that period.

Section 46, however, makes it plain that the extended benefits made available to all pregnant women under s. 30 are accompanied by a concomi­tant limitation of entitlement which excludes these women from any benefits under the Act during the

[Page 189]

period not exceeding 15 weeks that commences 8 weeks before her confinement is expected and terminates 6 weeks after the week in which it occurs unless she can comply with the condition of entitlement specified in s. 30(1). When these two sections are read together, as I think they must be, it will be seen that the governing condition of entitlement in respect of "unemployment caused by pregnancy" is the fulfilment of the condition established in s. 30(1) and that unless a claimant has had the "ten weeks of insurable employment" thereby required, she is entitled to no benefits during the period specified in s. 46:

The present appellant's "interruption of employment" occurred four days before the birth of her child and was therefore clearly "unemployment caused by pregnancy", but she had not fulfilled the conditions required by s. 30(1) when she applied for unemployment insurance six days later and this was the reason for her disentitlement.

The appellant's case, however, is that she is not claiming s. 30 pregnancy benefits at all but rather that she was capable of and available for work but unable to find suitable employment at the time of her application so that but for s. 46 she would have been entitled to the regular benefits enjoyed by all other capable and available claimants, and it is contended that in so far as that section disentitles her to the enjoyment of these benefits, it is to be declared inoperative as contravening s. 1(b) of the Canadian Bill of Rights in that it would constitute discrimination by reason of sex resulting in denial of equality before the law to the particular restricted class of which the appellant is a member. Section 1(b) of the Bill of Rights reads as follows:

It is hereby recognized and declared that in Canada there have existed and shall continue. to exist without discrimination by reason of race, national origin, colour, religion or sex the following human rights and funda­mental freedoms, namely,

(b) the right of the individual to equality before the law....

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The ratio decidendi of the judgment rendered by Mr. Justice Collier sitting as the Umpire in this case appears to me to be contained in the following passage:

I do not know the purpose of the legislators in inject­ing s. 46 into the 1971 legislation. It was suggested that, pre-1971, there was an assumption that women eight weeks before giving birth and for six weeks after, were, generally speaking, not capable of nor available for work; this, somehow, gave rise to administrative difficul­ties or abuses; section 46 was enacted to make it quite clear that, in the 14 week period, pregnant women and women who produced children, were, for the purpose of the statute not capable of nor available for work, and therefore not entitled to benefits. All that may be. Nevertheless, I am driven to the inescapable conclusion that the impugned section, accidentally perhaps, author­izes discrimination by reason of sex, and as a conse­quence, abridges the right of equality of all claimants in respect of the Unemployment Insurance legislation.

As I have indicated, s. 30 and s. 46 constitute a complete code dealing exclusively with the entitlement of women to unemployment insurance ben­efits during the specified part of the period of pregnancy and childbirth; these provisions form an integral part of a legislative scheme enacted for valid federal objectives and they are concerned with conditions from which men are excluded. Any inequality between the sexes in this area is not created by legislation but by nature.

In this regard I am in accord with the reasoning contained in the following paragraph from the reasons for judgment of Mr. Justice Pratte in the Federal Court of Appeal:

The question to be determined in this case is therefore, not whether the respondent had been the victim of discrimination by reason of sex but whether she has been deprived of "the right to equality before the law" declared by s. 1(b) of the Canadian Bill of Rights. Having said this, I wish to add that I cannot share the view held by the Umpire that the application of section 46 to the respondent constituted discrimination against her by reason of sex. Assuming the respondent to have been "discriminated against", it would not have been by reason of her sex. Section 46 applies to women, it has no application to women who are not pregnant, and it has no application, of course, to men. If section 46 treats unemployed pregnant women differently from other

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unemployed persons, be they male or female, it is, it seems to me, because they are pregnant and not because they are women.

It was contended, however, that the impugned section denied "equality before the law" for the period therein specified to pregnant and child-bearing women who failed to fulfil the conditions required by s. 30(1) because it denied them the benefits available to all other claimants both male and female, who had eight weeks of insurable employment and who were capable of and available for work.

The purpose and effect of s. 1 of the Bill of Rights was described by Laskin J., as he then was, in the course of his reasons for judgment rendered on behalf of the majority of the Court in Curr v. The Queen[2], where he said, in part, at p. 896:

...I do not read it as making the existence of any of the forms of prohibited discrimination a sine qua non of its operation. Rather, the prohibited discrimination is an additional lever to which federal legislation must respond. Putting the matter another way, federal legisla­tion which does not offend s. I in respect of any of the prohibited kinds of discrimination may nonetheless be offensive to s. 1 if it is violative of what is specified in any of the clauses (a) to (f) of s. 1. It is, a fortiori, offensive if there is discrimination by reason of race so as to deny equality before the law. That is what this Court decided in Regina v. Drybones ([1970] S.C.R. 282) and I need say no more on this point.

As I have indicated, s. 46 constitutes a limita­tion on the entitlement to benefits of a specific group of individuals and as such was part of a valid federal scheme. There is a wide difference between legislation which treats one section of the population more harshly than all others by reason of race as in the case of Regina v, Drybones, supra, and legislation providing additional benefits to one class of women, specifying the conditions which entitle a claimant to such benefits and defining a period during which no benefits are available. The one case involves the imposition of a penalty on a racial group to which other citizens are not subjected; the other involves a definition of

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the qualifications required for entitlement to ben­efits, and in my view the enforcement of the limitation provided by s. 46 does not involve denial of equality of treatment in the administration and enforcement of the law before the ordinary courts of the land as was the case in Drybones.

This latter test was applied in this Court when considering the meaning of equality before the law in Attorney General of Canada. v. Lavell-Isaac v. Bédard[3], at pp. 1365 and 1366; and the same reasoning was adopted by Martland J. on behalf of the majority of the Court in The Queen v. Burnshine[4], at pp. 703 and 704.

I agree with Mr. Justice Pratte that it is obvious that s. 46 did not have the effect of depriving the appellant of her right to "equality before the law" in the administration and enforcement thereof and that its validity cannot be challenged on this ground if the test which was approved in the last-mentioned cases is applied.

In the present case, however, Mr. Justice Pratte in the Court of Appeal, applied a somewhat differ­ent test saying:

... the right to equality before the law could be defined as the right of an individual to be treated as well by the legislation as others who, if only relevant facts were taken into consideration, would be judged to be in the same situation.

Mr. Justice Pratte concluded that where difference in treatment of individuals is based on a relevant distinction, the right to equality before the law would not be offended.

While agreeing that this constitutes a workable definition of equality before the law, the appel­lant's counsel contended that in treating pregnant and child-bearing women who failed to comply with s. .30(1) as a separate class, Parliament imposed. a classification on women during the weeks specified in s. 46 which is "clearly irrelevant".

[Page 193]

In the course of his reasons for judgment at first instance, Mr. Justice Collier made reference to a pre-1971 assumption "that women eight weeks before giving birth and for six weeks after, were, generally speaking, not capable of nor available for work", and in implementation of its apparent policy of encouraging women to take advantage of the pregnancy benefits provided by s. 30, Parlia­ment has, by enacting s. 46, precluded those who did not or could not avail themselves of these benefits from being entitled to any insurance ben­efits at all during the ''period described in that section.

Whatever may be thought of the wisdom of this latter provision, there can, in my view, with all respect, be no doubt that the period mentioned in s. 46 is a relevant one for consideration in determining the conditions entitling pregnant women to benefits under a scheme of unemployment insur­ance enacted to achieve the valid federal objective of discharging the responsibility imposed on Par­liament by s. 91(2A) of the British North America Act.

In this regard, the following passage which is also found in the reasons for judgment of the present Chief Justice in Curr v. The Queen, supra, although it is directed to the effect of the "due process" provision of s. 1(a) of the Bill of Rights, in my opinion applies with equal force in consider­ing whether s. 1(b) renders the impugned section inoperative. He there said at p. 899:

... compelling reasons ought to be advanced to justify the Court in this case to employ a statutory (as contrasted with a constitutional) jurisdiction to deny operative effect to a substantive measure duly enacted by a Parlia­ment constitutionally competent to do so, and exercising its powers in accordance with the tenets of responsible government, which underlie the discharge of legislative authority under the British North America Act.

In the case of Prata v. Minister of Manpower and Immigration[5], Mr. Justice Martland, speaking for the Court, characterized the effect of the earlier decision of this Court in The Queen v. Burnshine, supra, as authority for the following propo­sition which he stated at p. 382 in the following terms:

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This Court has held that s. 1(b) of the Canadian Bill of Rights does not require that all federal statutes must apply to all individuals in the same manner. Legislation dealing with a particular class of people is valid if it is enacted for the purpose of achieving a valid federal objective. (R. v. Burnshine).

In the Burnshine case, Mr. Justice Martland, speaking for the majority of this Court, described the burden resting upon one who seeks to have legislation declared inoperative as offending sec­tion 1(b) of the Bill of Rights in the following language:

In my opinion, in order to succeed in the present case, it would be necessary for the respondent, at least, to satisfy this Court that, in enacting s. 150, Parliament was not seeking to achieve a valid federal objective. This was not established or sought to be established.

These words are, in my opinion, directly applicable to the circumstances here disclosed.

To summarize all the above, I am of opinion that s. 46 forms an integral part of a valid scheme of legislation enacted by Parliament in discharge of its legislative authority under the British North America Act, and that the limitation on entitlement to benefits for which the section provides is to be read in light of the additional benefits pro­vided by the scheme as a whole and specifically by the provisions of s. 30 of the Act. I am accordingly of the opinion that s. 46 of the Unemployment Insurance Act as amended was not rendered inop­erative by the Canadian Bill of Rights, and I would answer the question as phrased in the notice served on the Attorney General of Canada and the Attorneys General of the Provinces in the negative.

For all these reasons, I would dismiss this appeal.

There will be no order as to costs.

Appeal dismissed.

Solicitor for the appellant: Andrew J. Roman, Ottawa.

Solicitor for the respondent: Roger Tassé, Ottawa.



[1] (1977), 16 N.R. 254.

[2] [1972] S.C.R. 889.

[3] [1974] S.C.R. 1349.

[4] [1975] 1 S.C.R. 693.

[5] [1976] 1 S.C.R. 376.

 

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