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Decision
[1] The appeal is dismissed.
Introduction
[2] On January 11, 2013, a panel of the board of referees (the “Board”) determined that the appeal of the Appellant from the previous determination of the Commission should be dismissed. In due course, the Appellant appealed that decision to an umpire on the grounds that his rights under s.15(1) of the Canadian Charter of Rights and Freedoms had been infringed.
[3] This appeal was decided on the record.
Analysis
[4] The Appellant, in his submissions, challenges the constitutionality of sections 23(1), 35(2)(e) and 36(14) of the Employment Insurance Regulations. Specifically, he objects to the fact that his Canada Pension Plan payments were deducted from his sickness benefits, while they were not from his regular benefits. He submits that:
“To treat a sickness benefit recipient differently than a regular benefit recipient with regard to the same funds is clearly discrimination as contemplated by the Canadian Charter of Rights and Freedoms section 15(1)...”
[5] The Appellant has not cited any other ground of appeal.
[6] In his submissions, the Appellant has not provided any affidavit evidence regarding the factual circumstances that establish his claim. He has also not undertaken the legal analysis called for by the Supreme Court of Canada regarding proving discrimination in Charter cases.
[7] In Bekker v. Canada (2004 FCA 186) the Federal Court of Appeal stated that:
“It is a serious matter to invoke the Charter to challenge the validity of legislation enacted by Parliament. Such challenges normally require an evidential foundation. Constitutional issues cannot and should not be decided in a factual vacuum. As Cory J. said in MacKay v. Manitoba, [1989] 2 S.C.R. 357 at pages 361-62:
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill- considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather it is essential to a proper consideration of Charter issues… Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
These concerns are very relevant to challenges under section 15, where the jurisprudence mandates a complex, multi-faceted, contextual inquiry by the reviewing court into whether or not the impugned legislation not only creates differential treatment, but is also discriminatory in the constitutional sense…”
[8] In this case, the Appellant’s submissions consist of one-and-a-half pages of argument, with no supporting documentation or case law. The Appellant has not addressed the tests established in Withler v. Canada (Attorney General) (2011 SCC 12) or Law v. Canada ([1999] 1 SCR 497). Even accepting that the Regulations mandate differential treatment of Canada Pension Plan moneys for sickness and regular benefits, the Appellant has not shown how this differential treatment rises to the level required to show an infringement of s.15(1) of the Charter.
[9] Making a constitutional challenge is not a casual undertaking. As noted by the courts, any constitutional case could have potentially far-reaching consequences, and must rest on a firm factual foundation. The Appellant has failed to provide a sufficient basis to ground a Charter claim. This appeal cannot succeed.
[10] As I have determined that this is not a properly supported Charter challenge, it is unnecessary to address the issue of notice to the provincial Attorneys General as would otherwise be required by the Federal Courts Act and the Social Security Tribunal Regulations.
Conclusion
[11] For the above reasons, the appeal is denied.