Date: 20130614
Docket: A-52-12
Citation: 2013 FCA 158
CORAM: EVANS
J.A.
STRATAS
J.A.
WEBB
J.A.
BETWEEN:
SHERRIE A. MICELI-RIGGINS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
A. Introduction
[1]
Ms.
Miceli-Riggins (the “applicant”) applies for judicial review of the decision of
the Pension Appeals Board dated January 3, 2012 (appeal CP22528).
[2]
In
that decision, the Board found the applicant did not qualify for disability
benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8, as amended
(the “Plan”). Certain provisions of the Plan, described below,
stood in her way.
[3]
However,
before the Board, the applicant also submitted that these provisions
discriminated against her, contrary to section 15 of the Charter. A majority of
the Board rejected her submissions, finding no infringement of section 15. One
member dissented. He would have “grant[ed]…[an] amendment” to the Plan
and would have granted her disability benefits.
[4]
For
the reasons set out below, there is no infringement of section 15 of the
Charter. The relevant provisions of the Plan apply to the applicant as
written. Under those provisions, she does not qualify for disability benefits.
Therefore, I would dismiss the application.
B. The
applicant, her work history and her declining health
[5]
The
applicant worked and contributed under the Plan from 1986 to 1993, in
1996 and again in January 1997. The two-year gap in contributions in 1994 and
1995 happened when the applicant left the workforce to attend school.
[6]
On
January 25, 1997, the applicant had a baby three months prematurely. She left
work to care for the baby.
[7]
Before
the birth of the child, the applicant suffered two car accidents. Her health
deteriorated from that time.
[8]
At
the time of the birth of the child in January 1997, the applicant was in “fair”
health. But she was not “disabled” within the meaning of the Plan and, thus,
was not entitled to disability benefits: dissenting reasons of the Board, at
paragraphs 13 and 26.
[9]
However,
after the birth of the child, the applicant’s health worsened gradually, and
this is well supported by medical reports. Her ability to do housework declined
toward the end of 1998. Only in 1998 did she see a doctor. Her last employment
ended in 1999. By 2000, the applicant had difficulty walking and lifting her
child and she could no longer do housework. In September 2000, her doctor
diagnosed her with fibromyalgia, triggered by the two earlier car accidents and
the childbirth. He opined that she was incapable of working.
[10]
As
if that was not enough, the applicant had another car accident in October 2002.
From that time, her condition worsened appreciably, to the point where she
needed physical assistance to get in and out of the bathtub.
[11]
By
the time of the hearing before the Board, her health was “terrible,” and she
always experienced pain. At the present time, she “is not doing much of anything.”
See the dissenting reasons of the Board, at paragraph 14.
C. The
applicant’s application for disability benefits
[12]
On
November 7, 2000, the applicant applied for disability benefits under the Plan.
To receive those benefits, the applicant had to demonstrate two things – the
presence of disability on the relevant date and sufficient attachment to the
workforce. To qualify for benefits, the applicant must have met both of these
requirements at the same time
(1) The
first requirement: the presence of disability
[13]
First,
the applicant had to establish that she was disabled and that her disability
was “severe” and “prolonged” as defined under paragraph 42(2)(a) of the Plan.
[14]
As
is well-known, the test under paragraph 42(2)(a) of the Plan is
difficult to meet. A disability is “severe” only if the person is not regularly
able to pursue any substantially gainful employment. The severity is judged not
by the severity of the disease or ailment afflicting the claimant. Rather, it
is judged according to whether the claimant is unable to work.
[15]
And
the “unable to work” standard is most difficult to meet. In order to meet it,
the claimant must demonstrate more than just an inability to perform his or her
former job. Instead, the claimant must show that he or she cannot engage in
“substantially gainful employment.” This includes modified activities at the
claimant’s usual workplace, any part-time work whether at the claimant’s usual
workplace or elsewhere, or sedentary jobs.
[16]
In
her application for benefits, the applicant stated that she could no longer
work because of her medical condition in August 1999. She did not dispute that
she could have worked before 1999.
[17]
Indeed,
before the Board, the applicant testified that she could have worked in 1997
despite the premature birth of the child in January 1997. Her husband testified
that the applicant was “normal” for at least part of 1997. Based both on this
evidence and the applicant’s application for benefits, the Board found that the
applicant was not disabled by December 31, 1997: see paragraph 4 of its
reasons. The applicant does not challenge this finding in this Court.
[18]
As
we shall see, this date, December 31, 1997, becomes most important to the
applicant’s entitlement to disability benefits.
[19]
The
dissenting Board member accepted that the applicant’s health condition became
“severe” and “prolonged” in the year 2000. However, as I shall now explain, the
majority of the Board did not accept that, as of December, 2000, the applicant
still satisfied the workforce attachment requirement. Rather, the last time she
met this requirement was December 31, 1997.
(2) The
second requirement: sufficient workforce attachment
[20]
Under
the Plan, sufficient workplace attachment is shown by contributions of a
certain amount under the Plan for a number of years during a defined
period of time. In the parlance of the Plan, this period is known as the
minimum qualifying period or MQP.
[21]
The
legislated rules that determine eligibility for a disability pension under the Plan
are strict and inflexible.
[22]
For
those disabled on or before December 31, 1997, the rule was that a claimant had
to have contributed under the Plan in five of the last ten years. In the
applicant’s case, had she been disabled in1997, she would have had sufficient
workplace attachment. She would have met the “five of ten” rule because she
had made contributions from 1988 to 1993 and then in 1996.
[23]
However,
for those disabled after December 31, 1997, a different rule applied. The
applicant was disabled after December 31, 1997 and, thus, was subject to the
different rule. Under that rule, the applicant had to have contributed under
the Plan in four of the last six years: Plan, subparagraph 44(2)(a)(i). In
order for a particular year to “count” in that calculation, a minimum amount
must be contributed under the Plan in that year. In 1997, the minimum
amount was equal to $3,500. See section 19 and paragraph 44(2)(a) of the
Plan.
[24]
The
foregoing can be illustrated in a chart setting out the applicant’s work and
contribution history through to 2004:
|
Year
|
Contribution
made at minimum required level?
|
Comments
|
|
1986 to 1993
|
Yes
|
|
|
1994
|
No
|
The
“five of ten” rule is satisfied. If disabled in this year, the applicant
would have sufficient workforce attachment.
|
|
1995
|
No
|
The
“five of ten” rule is satisfied. If disabled in this year, the applicant
would have sufficient workforce attachment.
|
|
1996
|
Yes
|
The
“five of ten” rule is satisfied. If disabled in this year, the applicant
would have sufficient workforce attachment.
|
|
1997
|
No
|
The
applicant worked until childbirth on January 25, 1997. She made contributions
under the Plan during January, but they failed to meet the minimum
amount required for the year. But throughout 1997, the “five of ten” rule is
satisfied. If disabled in 1997, the applicant would have sufficient workforce
attachment.
|
|
1998
to
2004
|
No
|
The
workplace attachment rule changed: it is now “four of six.” “Four of six”
rule not satisfied.
|
[25]
This,
however, is not the end of the story. The Plan contains two additional
provisions that mitigate unfair effects: the CRDO provisions and the proration
provision in section 19 of the Plan.
(3) The CRDO provisions
[26]
People
might not be able to work and make contributions under the Plan for good
reason. For example, parents may need to stay at home to care for a child. Even
today, this scenario continues to disproportionately occur with women rather
than men.
[27]
Leaving
the workforce to care for a child could have consequences for benefits under
the Plan. The failure to make contributions under the Plan in a
given year may reduce the benefits payable in the future. It may also affect
the operation of rules such as the “four in six” rule described above.
[28]
To
eliminate these potentially unfair effects, the Plan allows certain
periods to be excluded from the contributory period. These are known as the
“dropout provisions” in the Plan. There are three types of dropout
provisions: the general dropout provisions, the disability dropout provisions
and the child rearing dropout provisions (“CRDO”).
[29]
The
CRDO is designed to ensure that a person who stays home to raise a child under
the age of seven is not penalized during that time for having low or no
earnings. It protects eligibility for benefits and preserves the level of
benefits eventually paid out under the Plan. As the dissenting reasons
of the Board note, “[t]his feature of the design of the [Plan] plays a
vital role in advancing the financial security of women who have their work
interrupted by child rearing.”
[30]
The
CRDO provisions related to the workplace attachment test for disability
benefits are available to all eligible contributors, irrespective of gender,
who stay home to care for children under the age of seven and have pensionable
earnings in a particular year below the minimum amount of contribution required
for that year: Plan, subparagraph 44(2)(b)(iv). Specifically, the
CRDO provisions allow any month to be excluded from the contributory period
where: (1) the contributor is a “family allowance recipient” as defined in the Plan
Regulations; and (2) the contributor has earnings for the year below the
minimum amount of contribution required for that year.
[31]
In
this case, the applicant was a Child Tax Benefit recipient from February 1997
to January 2004 (when her child turned seven years of age) and thus, during
that time, was regarded as a “family allowance recipient” under the Plan
Regulations. Therefore, the period from February 1997 to January 2004 was
excluded from the applicant’s contributory period under the CRDO. This
exclusion may have the effect of increasing the amount of benefits she might
receive under the Plan.
[32]
We
must now update the chart setting out the applicant’s work and contribution
history through to 2004, taking into account the operation of the CRDO
provisions in the applicant’s case. As can be seen, the application of CRDO by
itself does not change the applicant’s situation:
|
Year
|
Contribution
made at minimum required level?
|
Comments
|
|
1986 to 1993
|
Yes
|
|
|
1994
|
No
|
The
“five of ten” rule is satisfied. If disabled in this year, the applicant
would have sufficient workforce attachment.
|
|
1995
|
No
|
The
“five of ten” rule is satisfied. If disabled in this year, the applicant
would have sufficient workforce attachment.
|
|
1996
|
Yes
|
The
“five of ten” rule is satisfied. If disabled in this year, the applicant
would have sufficient workforce attachment.
|
|
1997
|
No
|
The
applicant worked until childbirth on January 25, 1997. She made contributions
under the Plan during January, but they failed to meet the minimum
amount required for the year. But throughout 1997, the “five of ten” rule is
satisfied. If disabled in 1997, the applicant would have sufficient workforce
attachment. By operation of the CRDO provisions, the period from February
1997 does not count in the applicant’s contribution history.
|
|
1998
to
2003
|
These
years do not count for this purpose due to operation of CRDO provisions
|
The
workplace attachment rule changed: it is now “four of six.” “Four of six”
rule not satisfied. The CRDO provisions apply: this year does not count in
the applicant’s contribution history. Appellant has contributed only three of
the last six years.
|
|
2004
|
No
|
Her
child turned seven on January 25, 2004. Under the Plan, the benefit of
the CRDO provisions ends on January 31, 2004.
|
[33]
As
is apparent from this chart, the CRDO provisions do not alter the fact that the
applicant was not in compliance with the “four of six” rule on January 1, 1998.
(4) The
proration provision in section 19 of the Plan
[34]
The
proration provision in section 19 of the Plan is an ameliorative provision
designed to mitigate possible harsh results.
[35]
Section
19 of the Plan is designed to ensure that a contributor is not
disadvantaged when the contributor cannot make sufficient contributions in a
year. Under proration, the contributor’s required contribution level for the
year is reduced in proportion to the number of months the contributor was able
to work.
[36]
Proration
is available when a contributor reaches 70 years of age, dies, becomes
disabled, or the Plan retirement pension is payable. It is also
available when a person turns 18 years of age or ceases to receive a disability
pension under the Plan or provincial counterparts. It is not available
when a person gives birth to a child, or becomes or ceases to be eligible for
the CRDO.
[37]
Thus,
for 1997, the applicant’s required contribution could not be prorated because
she did not meet the conditions contained in section 19 of the Plan, as
written.
(5) The
applicant’s Charter submission
[38]
The
applicant invokes section 15 of the Charter, the equality rights guarantee. She
targets the CRDO provisions, the proration provisions in section 19 of the Plan,
the “four of six years” rule, and the use of the calendar year for calculation.
Collectively, these work together to deny women equal access to a disability
pension. She left the workforce to have a child early in the year before she
could make contributions at the minimum required level – a circumstance that
only a woman, not a man, can experience.
[39]
In
support of her section 15 claim, the applicant also notes the following:
● Women are generally more likely to stop working to care for
a child, making it harder to meet the minimum contribution level for the year,
especially following the birth of a child;
● Childbirth physically disrupts a women’s participation in
the workforce. As a result, it is harder to satisfy the minimum contribution
level required in years where a woman gives birth;
● Women generally earn less money than men, making it
generally harder to satisfy the minimum contribution level required for the
year;
● Pregnancy carries risks of disability, meaning that women
who give birth may not return to the workforce.
[40]
The
appellant asks that the Court read in “eligibility under the CRDO provisions”
as a circumstance that allows a person to prorate under section 19 of the Plan.
[41]
If
given that relief, the last day of the applicant’s MPQ moves to January 31,
2004, the end of the month when her child became seven years old and the
benefit of the CRDO provisions ended. This is shown by the following chart,
revised to show the situation should the applicant’s Charter submission be
accepted:
|
Year
|
Contribution
made at minimum required level?
|
Comments
|
|
1986 to 1993
|
Yes
|
|
|
1994
|
No
|
The
“five of ten” rule is satisfied. If disabled in this year, the applicant
would have sufficient workforce attachment.
|
|
1995
|
No
|
The
“five of ten” rule is satisfied. If disabled in this year, the applicant
would have sufficient workforce attachment.
|
|
1996
|
Yes
|
The
“five of ten” rule is satisfied. If disabled in this year, the applicant
would have sufficient workforce attachment.
|
|
1997
|
Yes
|
The
applicant worked until childbirth on January 25, 1997. She made contributions
under the Plan during January, but they failed to meet the minimum
level of contributions required. She made contributions under the Plan
during January. But prorationing, as sought by the applicant, would allow
this year to count as a contribution year. The applicant would meet the “four
of six” rule that applied after December 31, 1997
|
|
1998
to
2003
|
These
years do not count for this purpose due to operation of CRDO provisions
|
The
workplace attachment rule changed: it is now “four of six.” The “four of six”
rule is satisfied. The CRDO provisions apply: this year does not count in the
applicant’s contribution history. Applicant has contributed four of the last
six years.
|
|
2004
|
No
|
Her
child turned seven on January 25, 2004. Under the Plan, the benefit of
the CRDO provisions ends on January 31, 2004.
|
[42]
On
this basis, the applicant alleges that the last day of her MQP should be in
January, 2004. As she was disabled at that time, she would be entitled to
disability benefits.
D. Analysis
(1) General
principles
[43]
Traditionally,
courts adjudicating section 15 challenges have considered two questions:
(1)
Does the legislation create a distinction based on an enumerated or analogous
ground?
(2)
Does the distinction create a disadvantage by perpetuating prejudice or
stereotyping? In other words, is there discrimination?
See generally Law v. Canada,
[1999] 1 S.C.R. 497; R. v. Kapp, 2008 SCC 41 at paragraph 17, [2008] 2
S.C.R. 483; Withler v. Canada (Attorney General), 2011 SCC 12 at
paragraph 30, [2011] 1 S.C.R. 396.
[44]
Different
or unequal treatment alone does not infringe section 15 of the Charter.
Instead, section 15 is aimed at preventing discrimination. Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143 at page 182; Law, supra
at paragraph 51; Ermineskin Indian Band and Nation v. Canada, 2009
SCC 9 at paragraph 188, [2009] 1 S.C.R. 222. Put another way, “equality is not
about sameness and s. 15(1) does not protect a right to identical
treatment”: Withler, supra at paragraph 31.
[45]
In
many cases, the Supreme Court has attempted to describe the meaning of
discrimination. Discrimination is an elusive concept and so, not surprisingly,
it is not possible to find exact common ground in the descriptions of
discrimination in those cases. Like a prism, discrimination is a single item,
but it can look quite different and cast different types of light when viewed
from different angles. The Supreme Court’s descriptions, different as they may
be, are all helpful in understanding the nature of discrimination.
[46]
At
its root, discrimination is state action, state inaction or legislation that
perpetuates disadvantage and stereotyping: Kapp, supra at
paragraph 24; Withler, supra at paragraph 37. A classic statement
of discrimination is found in Andrews, supra at pages 174-75:
…discrimination
may be described as a distinction, whether intentional or not but based on
grounds relating to personal characteristics of the individual or group, which
has the effect of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which withholds or limits
access to opportunities, benefits, and advantages available to other members of
society. Distinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will rarely escape
the charge of discrimination, while those based on an individual’s merits and
capacities will rarely be so classed.
[47]
Discrimination
works a personal sting upon the individual, assaulting his or her dignity by labelling
the
individual, for reasons outside of his or her control, as being unworthy of
equal respect, equal membership or equal belonging in Canadian society: Law,
supra at paragraphs 47-53.
[48]
Particularly
useful on the definition of discrimination is the Supreme Court’s decision in Withler,
supra. There, the Supreme Court described two different types of
discrimination. These types, their characteristics, and the types of evidence
that are relevant to them, are as follows:
(1) The
perpetuation of prejudice or disadvantage to members of a group on the basis of
personal characteristics identified in the enumerated and analogous grounds.
This can happen when the law treats a historically disadvantaged group in a way
that underscores the very characteristics that have caused its disadvantage.
Key to proving this sort of discrimination is “evidence that goes to
establishing an applicant’s historical position of disadvantage or to
demonstrating existing prejudice against the applicant group, as well as the
nature of the interest that is affected”: Withler, at paragraph 38.
(2) The
creation or perpetuation of disadvantage based on a stereotype that does not
correspond to the actual circumstances and characteristics of the applicant or
applicant group. Here, historic disadvantage is not required. As explained
in Withler, “a group that has not historically experienced disadvantage
may find itself the subject of conduct that, if permitted to continue, would
create a discriminatory impact on members of the group…by stereotyping members
of the group” (at paragraph 36). The sort of evidence to be considered here
includes “whether there is correspondence with the applicants’ actual
characteristics or circumstances,” and “the ameliorative effect of the law on
others and the multiplicity of interests [the law] attempts to balance”: Withler,
at paragraph 38.
[49]
In
considering whether discrimination is present, narrow matters of form and
“overly technical” matters are to be cast aside: Auton (Guardian ad litem
of) v. British Columbia (A.G.), 2004 SCC 78 at paragraph 25, [2004] 3
S.C.R. 657.
[50]
Rather,
courts are to embark on a broader “contextual” analysis, “looking at the
circumstances” of members of the group and “the negative impact of the law on
them.” The emphasis is on the “actual situation of the group and the potential
of the impugned law to worsen their situation.” See Withler, supra
at paragraph 37.
[51]
The
contextual approach means that in some cases, a measure may be discriminatory.
In others, not. An important part of the context, as we shall see, is the
nature of the legislation that creates the impugned distinction. In the present
case, the Court is dealing with the provision of benefits under complex social
benefits legislation, a context many courts, including the Supreme Court, have
considered to be special.
[52]
By
adopting a substantive, not formal, approach to the matter and by viewing the
substance of the matter in its proper context, courts are able to address
whether, in the circumstances of the case, substantive equality is present. The
promotion and attainment of substantive equality is key to section 15.
[53]
In
Withler, supra the Supreme Court described substantive equality
as follows (at paragraph 39):
Substantive
equality, unlike formal equality, rejects the mere presence or absence of
difference as an answer to differential treatment. It insists on going behind
the facade of similarities and differences. It asks not only what
characteristics the different treatment is predicated upon, but also whether
those characteristics are relevant considerations under the circumstances. The
focus of the inquiry is on the actual impact of the impugned law, taking full
account of social, political, economic and historical factors concerning the
group. The result may be to reveal differential treatment as discriminatory
because of prejudicial impact or negative stereotyping. Or it may reveal that differential
treatment is required in order to ameliorate the actual situation of the
applicant group.
[54]
In
assessing whether an impugned provision promotes or perpetuates disadvantage
and stereotyping, the Supreme Court has suggested that four contextual factors
can be helpful:
(1) Pre-existing
disadvantage, stereotyping, prejudice, or vulnerability experienced by the
individual or group at issue;
(2) The
relationship or correspondence between the ground(s) on which the claim is
based and the actual need, capacity, or circumstances of the applicant or
others;
(3) The
ameliorative effects of the impugned legislation upon a more disadvantaged
person or group in society; and
(4) The
nature and scope of the interest affected by the impugned legislation.
(See generally Law, supra
at paragraphs 62-75; Kapp, supra at paragraph 19.)
[55]
The
four contextual factors are not to be used as a rigid template in every case. A
“rigid template risks consideration of irrelevant matters on the one hand, or
overlooking relevant considerations on the other”: Withler, supra
at paragraph 66; see also Kapp, supra. Rather, the four
contextual factors are to be used as a helpful guide in the analysis.
(2) The special context of
social benefits legislation
[56]
Social
benefits legislation, like the Plan, is aimed at ameliorating the
conditions of particular groups. However, social reality is complex: groups
intersect and within groups, individuals have different needs and
circumstances, some pressing, some not so pressing depending on situations of
nearly infinite variety. Accordingly, courts should not demand
“that legislation must always correspond perfectly with social reality in order
to comply with s. 15(1) of the Charter”: Law, supra at paragraph
105.
[57]
This
context means that distinctions arising under social benefits legislation will
not lightly be found to be discriminatory. The Supreme Court has confirmed this
over and over again.
[58]
Courts
cannot insist on “[p]erfect correspondence between a benefit program and the
actual needs and circumstances of the applicant group.” While exclusion from
participation in benefits programs “attracts sympathy,” the “inability of a
given social program to meet the needs of each and every individual does not
permit us to conclude that the program failed to correspond to the actual needs
and circumstances of the affected group.” See Gosselin v. Quebec (Attorney
General), 2002 SCC 84 at paragraph 55, [2002] 4 S.C.R. 429.
[59]
Accordingly,
one cannot simply conclude there is a section 15 violation from the fact that
social benefits legislation leaves a group, even a vulnerable group, outside
the benefits scheme:
The fact that some people may fall through the
program’s cracks does not show that the law fails to consider the overall needs
and circumstances of the group of individuals affected, or that all
distinctions contained in the law amount to discrimination in the substantive
sense intended by s. 15(1).
(Gosselin,
supra at paragraph 55.)
[60]
In
Withler, supra, the Supreme Court held that the assessment
whether social benefits legislation offends section 15 must be conducted
sensitively, keeping front of mind the social challenges the architects of the
legislation attempted to solve (at paragraph 67):
In
cases involving a pension benefits program such as this case, the contextual
inquiry at the second step of the s. 15(1) analysis will typically focus on the
purpose of the provision that is alleged to discriminate, viewed in the broader
context of the scheme as a whole. Whom did the legislature intend to benefit
and why? In determining whether the distinction perpetuates prejudice or
stereotypes a particular group, the court will take into account the fact that
such programs are designed to benefit a number of different groups and necessarily
draw lines on factors like age. It will ask whether the lines drawn are
generally appropriate, having regard to the circumstances of the persons
impacted and the objects of the scheme. Perfect correspondence between a
benefit program and the actual needs and circumstances of the applicant group
is not required. Allocation of resources and particular policy goals that the
legislature may be seeking to achieve may also be considered.
See paragraphs 38 and 66 of Withler
for further admonitions by the Supreme Court that some margin of appreciation
should be given when assessing whether social benefits legislation is
discriminatory.
[61]
In
light of these considerations, the Supreme Court on occasion has required that
something quite discernable or concrete, such as an illegitimate “singling out”
of a particular group, must be present before social benefits legislation will
be adjudged to be discriminatory:
It is not
open to Parliament or a legislature to enact a law whose policy objectives and
provisions single out a disadvantaged group for inferior treatment: Corbiere
v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.
On the other hand, a legislative choice not to accord a particular benefit
absent demonstration of discriminatory purpose, policy or effect does not
offend this principle and does not give rise to s. 15(1) review. This Court has
repeatedly held that the legislature is under no obligation to create a
particular benefit. It is free to target the social programs it wishes to fund
as a matter of public policy, provided the benefit itself is not conferred in a
discriminatory manner….
(Auton,
supra at paragraph 41.)
[62]
Another
indicium of discrimination is an inconsistency between the purpose of
the legislative scheme and the provision said to be discriminatory:
Where stereotyping of persons belonging to a group
is at issue, assessing whether a statutory definition that excludes a group is
discriminatory, as opposed to being the legitimate exercise of legislative
power in defining a benefit, involves consideration of the purpose of the
legislative scheme which confers the benefit and the overall needs it seeks to
meet. If a benefit program excludes a particular group in a way that undercuts
the overall purpose of the program, then it is likely to be discriminatory: it
amounts to an arbitrary exclusion of a particular group. If, on the other hand,
the exclusion is consistent with the overarching purpose and scheme of the
legislation, it is unlikely to be discriminatory. Thus, the question is whether
the excluded benefit is one that falls within the general scheme of benefits
and needs which the legislative scheme is intended to address.
(Auton,
supra at paragraph 42.)
[63]
However,
the finding of an inconsistency is not enough. Courts must bear in mind that
“[c]rafting a social assistance program to meet the needs of young adults is a
complex problem, for which there is no perfect solution” and “[n]o matter what
measures the government adopts, there will always be some individuals for whom
a different set of measures might have been preferable”: Gosselin, supra
at paragraph 55.
[64]
Put
another way, at a general level, social benefits programs often are expressed
in a complex web of interwoven provisions. Altering one filament of the web can
disrupt related filaments in unexpected ways, with considerable damage to
legitimate governmental interests. This Court said as much in Krock v. Canada (Attorney General), 2001 FCA 188 at paragraph 11:
When presented with an argument that a complex
statutory benefit scheme, such as unemployment insurance, has a differential
adverse effect on some applicants contrary to section 15, the Court is not
concerned with the desirability of extending the benefits in the manner sought.
In the design of social benefit programs, priorities must be set, a task for
which Parliament is better suited than the courts, and the Constitution should
not be regarded as requiring judicial fine-tuning of the legislative scheme.
[65]
“Constitutional
tinkering with complex, interlocking statutory provisions” in order “to cure an
apparent arbitrariness in the operation of a justifiable cut-off in a benefits
scheme” is “likely to create unforeseen anomalies of its own”: Nishri v.
Canada,
2001 FCA 115 at paragraph 43.
[66]
For
this reason, the Supreme Court has emphasized that it will not rewrite the
terms of benefits legislation or adjust qualifying provisions in it unless it
has been established that discrimination is present: Hodge v. Canada
(Minister of Human Resources Development), 2004 SCC 65,
[2004] 3 S.C.R. 357.
(3) The
nature of the Plan
[67]
The
nature of the Plan is an important part of the context in which the
applicant’s challenge must be assessed. Care must be taken not to transform the
Plan into something it is not and was never intended to be.
[68]
At
paragraph 91 of her memorandum of fact and law, the applicant describes the Plan
as being part of Canada’s “social system.” Insofar as the applicant suggests
the Plan is a general social welfare regime intended to bestow benefits
upon all, I disagree.
[69]
Some
general statements about the Plan are apposite. The Plan is not supposed
to meet everyone’s needs. Instead, it is a contributory plan that provides
partial earnings-replacement in certain technically-defined circumstances. It
is designed to be supplemented by private pension plans, private savings, or
both. See Granovsky v. Canada (Minister of Employment and Immigration),
2000 SCC 28 at paragraph 9, [2000] 1 S.C.R. 703.
[70]
Indeed,
it cannot even be said that the Plan is intended to bestow benefits upon
demographic groups of one sort or another. Instead, it is best regarded as a
contributory-based compulsory insurance and pension scheme designed to provide
some assistance – far from complete assistance – to those who satisfy the
technical qualification criteria.
[71]
Like
an insurance scheme, benefits are payable on the basis of highly technical
qualification criteria. Based on personal circumstances, some can make
contributions, others not.
[72]
Benefits
are paid from direct contributions of employees, employers, and monies earned
from the investment of contributory funds not required to pay current benefits.
As
a general matter, the quantum of benefits under the Plan is related to
earnings.
Like most insurance schemes, over time some contributors get significant
benefits and can say they got their money’s worth in terms of benefits
received. Others, due to their personal circumstances, can contribute for years
and get little in return.
[73]
Far
from providing universal welfare benefits, writ large, the Plan provides
six specific benefits: retirement pension, disability pension, death benefits,
survivor’s pension, disabled contributor’s child benefits, and benefits for the
child of a deceased contributor. What’s more, the Plan was never
intended to meet all needs of persons receiving those benefits, but rather was
designed to provide only partial benefits.
[74]
In
the words of the Supreme Court,
The Plan was designed to
provide social insurance for Canadians who experience a loss of earnings due to
retirement, disability, or the death of a wage-earning spouse or parent. It is
not a social welfare scheme. It is a contributory plan in which Parliament has
defined both the benefits and the terms of entitlement, including the level and
duration of an applicant’s financial contribution.
(Granovsky, supra at
paragraph 9.)
(4) Application
of these principles to the facts of this case
[75]
In
my view, the applicant’s section 15 challenge must fail. Based on the foregoing
summary of the law, there are a number of reasons for this.
– I –
[76]
The
applicant alleges that the impugned provisions have a disproportionately
negative impact upon women. In making out this claim, an indirect
discrimination claim, the applicant must adduce evidence showing that the
impugned provision is responsible for the effect, not other circumstances: Canada (Attorney General) v. Lesiuk, 2003 FCA 3. We cannot just assume that
the impugned provision is responsible:
If 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.
(Symes
v. Canada, [1993] 4 S.C.R. 695 at paragraph 134.)
[77]
The
applicant asserts there is a relationship between her gender and failing to
meet the contributory requirements of the Plan. But at one time she did
meet the contributory requirements of the Plan, having made
contributions for five years out of the ten between 1988 and 1997, and that
gave her a MQP of December 31, 1997. At later dates, on the “four of six”
rule,
she failed to meet the contributory requirements of the Plan not because
she was a woman, but because of her personal circumstances.
[78]
For
example, had the applicant not decided to take two years off to study and,
instead, made the requisite level of Plan contributions in those years,
she would have qualified for benefits. Indeed, had she elected to pursue a one
year study program rather than two, and had she made the requisite level of Plan
contributions in that year, she would have qualified for benefits. Further, had
she returned to work in 1997, 1998 and the first part of 1999, her MQP would
have shifted to the end of 1999 and she would have qualified for disability
benefits.
[79]
Indeed,
if one were to ask in this case why the applicant did not receive disability
benefits, the answer would not be “discriminatory legislative provisions in the
Plan,” but rather the confluence of circumstances unique to the
applicant and not shared by many women at all. The circumstances unique to the
applicant include her decision to take two years off to study, the timing of
that study period, her decision not to work for part of the year in those two
study years resulting in a lack of contribution in those years, the fact that
her child was not born towards the end of the year, and the fact that her
medical condition deteriorated to the point of “disability,” as that is defined
in the Plan, only later.
[80]
In
the case of section 19 of the Plan, proration is allowed in some
circumstances but not in others. The applicant has not shown that these
circumstances are related to an enumerated or analogous ground. Without
evidence such as that, the court cannot tell whether section 19 has contributed
to or caused an adverse effect upon women: Nadeau v. M.N.R., 2003 FCA
400 at paragraphs 37 to 39.
[81]
It
is true that there is evidence in the record to suggest that women face a
disproportionate burden of leaving the workforce to care for a young child. But
the applicant has not established that the impugned provisions cause or
contribute to that burden. Indeed, evidence in the record shows that for many
women, leaving the workforce to care for a child is a temporary event that does
not definitively end the contributory period: see appeal book, pages 483 and
664.
[82]
The
applicant argues that the statutory provisions have the effect of making it
easier for the father of the child than the mother to take advantage of the
benefit of the CRDO provisions. This is because a father can elect to cease
work to care for the child after meeting the contribution requirement for that
year, while a mother is limited by the timing of the child’s birth.
[83]
This
argument does not establish discrimination for the purpose of section 15. For
one thing, in order to be eligible to the benefit of the CRDO provisions, the
father would have to rebut the presumption that the mother is the primary
caregiver of the child. And for another, this differential impact in the
operation of the impugned provisions of this complex statutory scheme does not
satisfy the essential elements of discrimination in the constitutional sense
that I have described in these reasons.
– II –
[84]
When
a person is denied benefits under a complex and intricate social benefits
scheme such as this, one does not conclude that the person is not an equal
member of Canadian society, is deserving of less worth, or does not belong with
the rest of us. One concludes that, like so many others, the person did not get
benefits under a non-universal scheme because technical qualification
requirements were not met. That is the case here.
[85]
As
the cases, above, demonstrate, there must be something more that takes the case
outside of being a mere artifact of a complex benefits scheme and into the
realm of discrimination. For example, an invidious singling out of a category
of person for detrimental treatment might trigger a finding of discrimination.
That is not the case here.
[86]
The
fact that in this circumstance the Plan treats the applicant differently
from others is best seen as an artifact of a complex and intricate scheme with
many eligibility and qualification rules, rather than a singling out of her, or
persons like her, for different treatment, as was described in Auton, supra.
[87]
Indeed,
the analysis, above, shows that a detrimental effect is caused upon only some
women, namely the women in the applicant’s highly unusual circumstance, with
her particular contribution history. It does not affect all women, not even all
women who have a child.
[88]
This
underscores the finding, above, that the Plan does not “single out”
women in an invidious way. Nor is there “discriminatory purpose, policy or
effect” of the sort said to be required in Auton, supra at paragraph 41.
Rather, the detrimental effect caused on the applicant – a member of a very
narrow class of women – is a consequence of the interaction of complicated
rules within a complicated scheme that is not a general social welfare
scheme available to all in every circumstance.
[89]
One
cannot help but have tremendous sympathy for the applicant and the plight she
finds herself in. A different set of rules or conditions under the Plan
might be preferable. However, the Plan cannot meet the circumstances of
every contributor in every conceivable situation. Its failure to do so, by
itself, does not mean that the Plan violates section 15.
– III –
[90]
There
is another way of putting the point made in the previous section.
[91]
The
applicant’s failure to meet the contributory requirements at a date later than
her established minimum qualifying period was as a result of the specific
factual circumstances of her case and not on the basis of any distinction made
between her and others under the Plan. The provisions do not create a
distinction between her and others on the basis of an enumerated and analogous
ground of discrimination.
[92]
One
could say that the true point of complaint by the applicant is the operation of
the CRDO provisions in cases where a woman gives birth early in the calendar
year, thus reducing the number of months in the year of birth in which to make
valid contributions under the Plan. This is shown by the fact that the
applicant would have demonstrated sufficient workplace attachment had she given
birth in, say, December 1996 or September1997. In short, on the applicant’s
view of the matter, the CRDO provisions do not kick in soon enough.
[93]
The
month in which a child is born is not an enumerated or analogous ground under
section 15 of the Charter, nor is it a personal characteristic upon which the
applicant was denied a benefit under the Plan.
– IV –
[94]
We
are to assess “whether the lines drawn are generally appropriate, having regard
to the circumstances of the persons impacted and the objects of the scheme” and
we need not insist on “perfect correspondence between a benefit program and the
actual needs and circumstances of the applicant group”: Withler, supra
at paragraph 67.
[95]
In
my view, the lines drawn are generally appropriate. And in the words of Auton,
quoted above, the Plan does not impact women “in a way that undercuts
the overall purpose of the program,” nor does it single out women in any
invidious way. Rather, this particular woman, owing to her particular
circumstances – some of which were in her control and others not – simply does
not qualify under the technical criteria of the Plan.
– V –
[96]
The
evidence before us shows that women have historically suffered from social and
economic disadvantage concerning child rearing. However, the CRDO provisions
and the proration provisions in section 19 of the Plan do not contribute
to or worsen any pre-existing disadvantage for the applicant, nor do they
worsen any pre-existing disadvantage for women in general. Nor are they based
on any stereotypes of women.
[97]
In
this regard, the case at bar bears a resemblance to Nishri, supra.
In that case, this Court rejected a claim that a statutory cap on parental
benefits under the Employment Insurance Act was discriminatory. Even if
the statutory cap adversely affected women, this Court held (at paragraph 43)
that the cap could not “reasonably be regarded as pernicious stereotyping or
the denial of a birth mother’s worth.”
[98]
This
case also is similar to Lesiuk, supra, where a female applicant
was denied benefits under the Employment Insurance Act. In order to
receive benefits, she had to have worked 700 hours within a particular
qualification period. She fell just three hours short because of childbirth.
[99]
This
Court rejected her claim that the 700-hour requirement was discriminatory
against women. Any reasonable person looking at her case would conclude that an
“unfortunate confluence of events” had conspired to defeat her claim, not
discriminatory legislative standards (at paragraph 45):
These requirements do not create or reinforce a stereotype
that women should stay home and care for children. Nor do
these requirements affect the dignity of women by suggesting that their
work is less worthy of recognition. Anyone who works the requisite number of
hours in their qualifying period will qualify. It would stretch reason to
imagine that reasonable persons in the respondent's situation would feel
themselves any less valuable as a worker or as a member of society by the mere
fact of having narrowly fallen short of qualifying for EI benefits in a given
year. Rather, I would imagine that a reasonable person would simply feel that
they had narrowly missed qualifying because of an unfortunate confluence of
events.
[100] Bound as
I am by these cases, I must apply them to the circumstances of the applicant’s
case. As in Lesiuk, regrettably she is denied benefits because of an
“unfortunate confluence of events,” not discriminatory legislative standards.
– VI –
[101]
Far
from being detrimental, the impugned provisions are best regarded as
ameliorative.
[102] The CRDO
provisions are aimed at accommodating and assisting those who stay at home
because of child rearing responsibilities. Most who leave the workforce to care
for young children are women and they often suffer economically as a result. In
the words of the applicant’s expert, the CRDO provisions “came into force to
accommodate the needs of female workers who were more likely to experience a
work history that includes disruption to their labour force participation”:
appeal book, page 481.
[103] Other
expert evidence before us shows that women benefit from this provision more
than men: appeal book, page 889. 45.9% of women have the CRDO provisions
applied to the calculation of their retirement benefits, as opposed to 0.3% of
men: appeal book, page 471. From this, we see that women are 153 times more
likely than men to rely upon the CRDO provisions in the calculation of their
retirement benefits: appeal book, page 482. The operation of the CRDO
provisions positively affects 53% of female retirement beneficiaries and 66% of
female disability beneficiaries. In the case of retirement benefits, a woman
who takes advantage of CRDO on average receives benefits that are 24% higher.
In the case of disability benefits, a woman who takes advantage of the CRDO
provisions on average receives benefits that are 7% higher. This shows that the
CRDO provisions actually mitigate the social disadvantage women may face when
they withdraw from the workforce to care for young children.
[104] Those
who stay at home rearing children usually earn little or no income. Since
pension benefits are calculated in part on the basis of a person’s average
pensionable earnings, the person primarily responsible for child rearing –
usually a woman – is at risk of receiving lower pension benefits. Seen against
this backdrop, the CRDO provisions are ameliorative: in certain circumstances
it excludes from the calculation of benefits years of little or no income due
to child rearing.
[105] Put
another way, the CRDO provisions reflect the recognition that both partners in
a family contribute equally in their role as a partner and a parent. The CRDO
provisions recognize that both partners in a union may not be participating in
the workforce to the same extent and so some protection is needed in order to
protect eligibility for, and the level of, Plan benefits eventually paid
to such a contributor.
[106] Under the CRDO
provisions, parents can remove from their contributory periods under the Plan
time spent caring for young children. In this way, the CRDO provisions
ensure that parents who leave or reduce their workforce participation to raise
pre-school age children are not penalized in determining future pension
benefits: Harris v. Canada (Minister of Human
Resources and Skills Development), 2009
FCA 22 at paragraphs 89 and 101.
[107] Indeed,
I would note that the CRDO provisions operate to favour women because of
related provisions that have the effect of presumptively considering them, not
men, the primary caregivers in certain circumstances: Income Tax Act,
R.S.C. 1985 c. 1 (5th Supp), paragraph 122.6(f), incorporated by
reference in the Plan Regulations.
[108] On the whole, the CRDO provisions fit alongside a number of other
features of the Plan that are designed to protect the financial well-being
of women. These include provisions dealing with credit-splitting upon
separation, divorce or the dissolution of a common-law union, the assignment of
the retirement pension between spouses and common-law partners, and survivors’
benefits.
[109]
The
proration provision under section 19 of the Plan is intended to ensure
that where a contributory period ends by virtue of advanced age,
disability, entitlement to certain retirement provisions or death, a person is
not disadvantaged by virtue of the fact that they could not work and contribute
under the Plan for any month after that event. This, too, is
ameliorative.
[110] On
the basis of the authorities canvassed above, particularly Withler, supra
at paragraphs 38 and 45, the ameliorative nature of the CRDO provisions and the
proration provision in section 19 leads to the conclusion that the applicant
has not established the presence of discrimination.
– VII –
[111] Indeed,
the fact that the CRDO provisions and the proration provision in section 19 of
the Plan are ameliorative in nature may have other consequences for the
section 15 analysis. To the extent that they are aimed at ameliorating or
remedying the condition of women, a subsection 15(1) enumerated group, they may
be said to be a “law, program or activity” within the meaning of subsection
15(2). In such a case, they cannot be found to be discriminatory under
subsection 15(1): Kapp, supra at paragraph 41; Lovelace v. Ontario, 2000 SCC 37 at paragraphs 84-87, [2000] 1 S.C.R. 950.
– VIII –
[112]
The
applicant cites Vriend
v. Alberta, [1998] 1 S.C.R.
493 for the proposition that underinclusive legislation can be
discriminatory. She submits that Vriend is on all fours with her case.
[113] But Vriend
is distinguishable. Vriend concerned the exclusion of a ground – sexual
orientation – from a general anti-discrimination scheme. The Act gave a wide
benefit – protection from discrimination on a number of grounds – to most
people while denying it to persons having same-sex orientation.
[114] Here,
the Plan does not bestow a general benefit of proration. Instead,
section 19 of the Plan prorates the basic exemption in a limited set of
circumstances.
– IX –
[115]
Finally,
I note that the foregoing analysis is consistent with that adopted in Runchey
v. Canada (Attorney General), 2013 FCA 16, a decision released
by this Court after argument in this appeal.
E. Proposed
disposition
[116]
For
the foregoing reasons, I conclude that the impugned provisions do not infringe
section 15 of the Charter. Therefore, I would dismiss the applicant’s
application for judicial review. The respondent Crown does not seek its costs
and so none shall be awarded.
“David Stratas”
“I
agree
John M. Evans J.A.”
“I
agree
Wyman W. Webb J.A.”
Email this Content