Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

Overview

[2] The Appellant had two closely spaced pregnancies. Her first child was born in June 2014. She became pregnant with her second child in May 2015, while her parental leave ended in June 2015. After that parental leave, the Appellant could not return to her employment because her employer had eliminated her position during her parental leave. She still contacted the employer around mid-June 2015 to find out whether it had work for her but was unsuccessful. The Appellant looked for work until around July 2015 and then did not feel able to because of her pregnancy and the fact that she was not feeling well.

[3] Her second child was born in February 2016, and the Appellant had not worked between her pregnancies and therefore had not accumulated the number of hours of insurable employment needed to be entitled to benefits for a second maternity/parental leave.

[4] The Appellant alleges that section 8(1)(a) of the Employment Insurance Act (Act) and section 93(1)(b) of the Employment Insurance Regulations (Regulations) breach section 15(1) of the Canadian Charter of Rights and Freedoms^{Footnote 1} (Charter). Specifically, she argues that women who have two closely spaced pregnancies are discriminated against because they have to accumulate 600 hours of insurable employment within a qualifying period of 52 weeks preceding the second maternity/parental leave. She submits that she is experiencing the adverse effects of the application of the requirements of the Act on the basis of sex and pregnancy (enumerated and analogous grounds).

[5] The Respondent submits that the Act does not make a distinction regarding women but that it distinguishes between people who have an attachment to the workplace and those who do not, which is not discriminatory. It maintains that women and women who have two closely spaced pregnancies are not treated differently from men in terms of the application of the hours of insurable employment required to establish a second benefit period.

Issues

[6] The Tribunal must decide the following issues:

1. Do the effects of section 8(1)(a) of the Act and section 93(1)(b) of the Regulations—which required the Appellant to accumulate 600 hours of insurable employment over the 52 weeks preceding her second maternity/parental leave to be eligible for benefits—constitute discriminatory treatment on the basis of sex and therefore violate her right to equality guaranteed in section 15(1) of the Charter?
2. If so, is the violation justifiable under section 1 of the Charter?
   1. Does the objective of the legislation relate to concerns that are pressing and substantial?
   2. Are the means used to attain that legislative goal reasonable, and can they be justified in a free and democratic society?

Analysis

[7] Section 15(1) of the Charter sets out that everyone is equal under 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.^{Footnote 2} Legislation enacted by Parliament and its application must therefore be free of discrimination based on any of these grounds. Each impugned provision must be subject to an analysis according to the teachings of the Supreme Court of Canada.

Issue 1: Are the effects of sections 8(1)(a) of the Act and 93(1)(b) of the Regulations discriminatory?

[8] It was in Andrews^{Footnote 3} in 1989 that the Supreme Court of Canadaconsidered the application of section 15 of the Charter for the first time. Judge McIntyre established that the purpose of section 15 was to “ensure equality in the formulation and application of the law.” He went on to specify that it is a protection of real equality, not of the concept of formal equality.

[9] In Andrews, the Supreme Court of Canada also specified that the fact that a law allows for certain individuals to be treated differently does not mean that it automatically breaches the right to equality in section 15. Judge McIntyre indicated that, in addition to being different for different people, the treatment had to be recognized as having a discriminatory effect.

[10] More recently, the highest court in the country restated that “equality is not about sameness and s 15(1) does not protect a right to identical treatment. Rather, it protects every person’s equal right to be free from discrimination.”^{Footnote 4}

[11] What constitutes discriminatory treatment has been the subject of several debates and subsequent Supreme Court of Canada decisions establishing various criteria and tests to apply when performing an analysis relating to section 15 of the Charter. More recently, the decisions Kapp,^{Footnote 5} Withler,^{Footnote 6} and Quebec (Attorney General) v A^{Footnote 7} have clarified the test to apply to challenges under section 15 by highlighting more than ever the importance of the concept of real equality and the consideration of the contextual factors of each matter.

[12] In this case and for the following reasons, I find that the Appellant has failed to show that the effects of sections 8(1)(a) of the Act and 93(1)(b) of the Regulations are discriminatory.

A) Do sections 8(1)(a) of the Act and 93(1)(b) of the Regulations create a distinction based on an enumerated or analogous ground?

[13] The first step of the test is to show that a person is not receiving equal treatment before and under the law or that the law has a differential impact on them in the protection or benefit of the law.^{Footnote 8}

[14] Sometimes, a law explicitly creates a distinction based on an enumerated or analogous ground. In such cases, discrimination will be invoked as direct, and the transition from step one to step two will be relatively simple.^{Footnote 9} Discrimination may however be indirect in cases where the law purports to treat everyone the same, but it has a disproportionately negative impact on a group or individual because of enumerated or analogous grounds.^{Footnote 10} I note that the impugned provisions in this case make no distinction on the basis of an enumerated or analogous ground and that they apply to all Employment Insurance claimants without regard for their personal characteristics. There is therefore no distinction arising from the language of the Act. As a result, the Appellant raises indirect discrimination arising from the effects of the legislative provisions. The Appellant therefore has more work to do at the first step.

[15] In this case, for the reasons that follow, I find that the Appellant has failed to show that the effects of section 8(1)(a) [sic] and section 93(1)(b) of the Regulations create a distinction based on an enumerated or analogous ground.

[16] In June 2014, the Appellant gave birth to her first child. She had had employment since March 2013 and met the required conditions to be eligible for maternity and parental benefits. As a result, she collected those benefits as of June 16, 2014. On December 8, 2014, when she was a claimant of parental benefits, the Appellant unfortunately lost her employment because her employer eliminated her position. She became pregnant again in May 2015, a few weeks before the end of her parental leave for her first child.

[17] The Act sets out that to establish a new benefit period, the Appellant must meet the entitlement conditions again.^{Footnote 11} This includes accumulating a certain number of hours of insurable employment.^{Footnote 12} The Appellant gave birth to her second child on February 26, 2016. Between the end of her parental benefit period for her first child and the birth of her second child, about eight months passed during which the Appellant did not work. She therefore did not accumulate hours of insurable employment before her second maternity leave and, as a result, is not entitled to maternity and parental benefits.

[18] Section 93(1)(b) of the Regulations sets out that, to receive special benefits, such as maternity and parental benefits, a person must have had “600 or more hours of insurable employment in their qualifying period.” The qualifying period is defined in section 8(1) of the Act. Subject to exceptions set out in the Act, the qualifying period is the 52 weeks that precede the beginning of a benefit period. In this case, the Appellant gave birth to her second child in February 2016, but she filed her claim on April 6, 2016. The beginning of her benefit period was established on April 2, 2016. The Appellant therefore had to accumulate 600 or more hours between April 5, 2015, and April 2, 2016, to gain access to special benefits (maternity and/or parental). She accumulated zero.

[19] The Appellant argues a difference in treatment based on an enumerated and analogous ground, specifically gender and pregnancy.^{Footnote 13} Furthermore, she argues that the effect of the two provisions in question creates a distinction between her and other workers of the opposite sex. The Appellant argues that pregnant women have more difficulty finding employment and completing the tasks that an employment requires during their pregnancies, finding themselves disadvantaged in comparison with men in relation to their capacity to accumulate the hours needed for entitlement to benefits. Specifically, the Appellant argues that a man in the same situation as the Appellant (having two children from closely spaced pregnancies) could easily return to work and accumulate the required hours during his qualifying period to be eligible for special benefits.

[20] The Commission submits that the Appellant has failed to show the distinction in treatment. It is of the view that the Appellant did not offer evidence establishing a causal link between the impugned legislation and a prejudicial distinction for pregnant women.

[21] I have asked myself whether having to accumulate 600 hours of insurable employment between two periods of special benefits creates prejudice for pregnant women when compared to men. Faced with the evidence presented, I am not satisfied that the Appellant has demonstrated this.

[22] First, I find that, if the Appellant failed to accumulate the necessary hours for her entitlement to maternity/parental benefits, it is not because of her sex or her pregnancy. I am of the view that, if the Appellant failed to accumulate those hours, it is partly because of the fact that the Appellant lost her employment in December 2015. Evidence was not submitted showing that if the Appellant could have returned to her employment with X, she would not have done so. Rather, I note from the evidence that the Appellant first called her former employer back to ask whether it had work for her. Unfortunately, X did not have a position to offer the Appellant, but this shows that she had the capacity and desire to work despite her pregnancy. This also shows that she would have worked if not for the elimination of her position. To that end, the Appellant found herself in the same position as a man on parental leave who loses his employment. Placed in the same situation, that man would have to find other employment and accumulate 600 hours to be entitled to special benefits, just like the Appellant did.

[23] Second, the Appellant decided not to work and accumulate hours of insurable employment during her second pregnancy. She admitted this and explained that she was not feeling her best, was nauseous, and told herself that no one would want to hire a pregnant woman who would give birth a few months later. In the absence of medical evidence showing that pregnancy prevents her from working or finding employment, I note that the Appellant made the personal choice not to look for work and, in doing so, not to work.

[24] Furthermore, I agree with the Commission that the Appellant showed through the example of her first pregnancy that a pregnant woman has the capacity to work and accumulate the 600 hours required to be eligible for maternity/parental benefits. The fact that she failed to accumulate the hours required to establish a benefit period a second time does not therefore result from the fact that she was pregnant, but from her personal decision not to work or even to try to find employment.

[25] The Appellant assumed that she would not be hired, but that remains a hypothesis that she is unable to prove. It would be speculating to advance that a pregnant woman would not be hired because of her pregnancy or that she would have more difficulty finding employment than a man would. No evidence has been submitted to that effect. For this purpose, as the Commission noted, the Court of Appeal has reaffirmed that “[w]e cannot just assume that the impugned provision is responsible.”^{Footnote 14}

[26] To show that the impugned provisions have a disproportionately adverse effect on pregnant women who have two closely spaced pregnancies, the Appellant must present evidence showing that the impugned provisions, not other circumstances, are responsible for the effects.^{Footnote 15} Therefore, “[i]f the adverse effects analysis is to be coherent, it must not assume a statutory provision has an effect which is not proved. We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision.”^{Footnote 16}

[27] Although I acknowledge that the biological reality means that only women can become pregnant, I find from the evidence in this file that not having accumulated the required hours to be entitled to special benefits arises from a combination of reasons, including the Appellant’s personal choice, the loss of her previous employment, and her personal situation. She has not convinced me, in the absence of evidence to that effect, that her pregnancy is actually the reason why she was unable to satisfy the requirement for 600 hours of insurable employment in the 52 weeks preceding her second maternity/parental leave.

[28] For example, if the Appellant had not lost her employment with X or if she had decided to look for and find employment, she would likely have been entitled to benefits. Nevertheless, losing her employment is unfortunate, but it constitutes her personal situation rather than an enumerated or analogous ground of the Charter.

[29] Furthermore, it has not been shown that, compared to men, all or most women who have closely spaced pregnancies do not have access to benefits. The Appellant submits that the Act establishes a dependency for women who have closely spaced pregnancies by requiring them, through the effects of section 8(1)(a) of the Act and section 93(1)(b) of the Regulations, to return to work during their pregnancy that takes place during their qualifying period. Yet men also have to accumulate hours and meet the same entitlement criteria if they want access to parental benefits for their children born close together. I see no distinction in treatment since it has not been shown that a woman’s pregnancy during the same period would cause prejudice beyond that of a man. Both men and women are forced to return to work if they want to access benefits again.

[30] The Appellant argues that pregnant women are not able to return to the labour market as easily as men, but she has not supported those allegations with any evidence. I confess to being confused by this argument because the Appellant seems to be insinuating that pregnant women do not have the capacity to work when they are pregnant, whether the pregnancies are closely spaced or not. I cannot draw such a conclusion, considering that there is no evidence showing that pregnancy is an obstacle to employment. On the contrary, I find that one must be cautious before finding that women are unfit to work during their pregnancies because that could have adverse and discriminatory effects on their access to Employment Insurance benefits.

[31] I am empathetic toward the Appellant’s situation and the fact that it may be difficult to have two closely spaced pregnancies while maintaining her attachment to the labour market. I am not at all minimizing the very real and considerable challenges that mothers experiencing a second closely spaced pregnancy face. Furthermore, I am of the view that it is reasonable to believe that the women of our society are often subjected to differential treatment socially and economically. However, the evidence of adverse effects because of sex or pregnancy must be shown based on valid evidence.^{Footnote 17} The Supreme Court has noted that a web of instinct is not enough to prove a violation of the Charter.^{Footnote 18}

Other considerations

[32] The Appellant argues that forcing pregnant women to return to the labour market during their qualifying period to accumulate the hours required to receive Employment Insurance benefits contradicts the purpose of the provisions.

[33] I am dismissing this argument.

[34] The Appellant relies on a quote from Judge Lambert of the British Columbia Court of Appeal:

In my opinion the purpose of the Maternity Leave and Maternity Allowance provisions, when seen in their context, is not the encouragement of family formation but, rather, protecting the health and well-being of pregnant women and new biological mothers, (not simply new parents), while undergoing the health and other stresses of giving birth and recovering from giving birth, so that they can reasonably effectively return to the workforce.^{Footnote 19}

[35] I find that the Appellant is not applying Judge Lambert’s remarks properly. If he ruled on the purpose of maternity leave and benefits, he did not rule in any way on pregnancy before said leave. In this case, the Appellant was entitled to her full maternity/parental leave so that she could recover from her first delivery. Based on Judge Lambert’s remarks, the leave should have allowed her to recover so that she could return to the workforce. Those remarks contradict the Appellant’s position in that they instead support the fact that, having benefitted from her parental leave, the Appellant should be in the best possible condition to return to the workforce. The purpose of the maternity/parental benefits system is not relevant to this issue because it does not define the situation of a woman after her delivery but rather that of a pregnant woman who has to accumulate insurable hours of employment.

[36] Furthermore, the Appellant argues that families that decide to have children close together should not be penalized and should receive benefits regardless of whether they work 600 hours. With respect, that argument is without merit because it ignores the entire foundation of the contribution-based Employment Insurance system according to an insurance plan. I also note that the Federal Court of Appeal has already ruled that the requirement of a number of hours of insurable employment does not constitute discriminatory treatment for women because of their parenthood within the meaning of section 15 of the Charter.^{Footnote 20} Several points of Judge Létourneau’s reasoning could apply to our case because of similarities.

[37] Finally, the fact that the Appellant accumulated more than 2,000 insurable hours of employment through her last employment with X is completely irrelevant. All of those hours have already been used to establish her maternity and parental benefit period following the birth of the first child. The Act is not made so that only the hours needed to establish a benefit period are used, while the balance is kept for another time. Parliament simply did not think of the Employment Insurance system that way. Such an application could yield absurd results. For example, based on the same reasoning, a person who accumulates thousands of hours over a career of numerous years without interruption could establish an almost infinite number of benefit periods. The hours accumulated cannot be used to obtain benefits forever. As Mr. Joly, the Commission’s expert witness,^{Footnote 21} stated, the system is based on a fundamental goal, which is to ensure that workers can manage the transitions in their careers, whether it is a loss of employment, the birth of a child, or an illness, by offsetting the temporary loss of wages during said transitions. He clearly indicated that the entitlement criteria, the qualifying period, and the benefit period are fundamental elements of the program for proving that the attachment to the field of work is recent. He noted that the benefit periods could not accumulate and that the hours counter had to be reset to zero in order to ensure that the presence in the field of work was recent and continuous.

B) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

[38] When a group of people see that they are treated differently because of an immutable personal characteristic (enumerated or analogous ground), they must then demonstrate that this distinction is discriminatory. In this case, there is no need to proceed to the analysis of the discriminatory character of the effects of the provisions in question because I have found no difference in treatment in the first step of the test.

Issue 2: Is the violation justifiable under section 1 of the Charter?

[39] When a violation of section 15(1) of the Charter is established, section 1 of the Charter stipulates that the government must prove that the violation can be justified in a free and democratic society.^{Footnote 22}

[40] In this case, since I have found that the provisions in question were not discriminatory within the meaning of the Charter, it is not necessary to pursue the analysis further and to rule on this part of the constitutional challenge analysis.

Conclusion

[41] The points the Appellant raised are commendable. However, they constitute political complaints and her desire for Parliament to alter the entitlement requirements for mothers who have closely spaced pregnancies. Thus far, it has not been the target of political will. The Appellant may turn to Parliament to put her position forward. As for me, I cannot go beyond the application of the Act based on the analysis rigorously developed by the Supreme Court of Canada. Based on that analysis, the Appellant failed the first step of the legal test by failing to show a distinction in treatment based on an enumerated or analogous ground, namely sex and pregnancy. The provisions in question are therefore not discriminatory under section 15 of the Charter.

[42] The appeal is dismissed.