T-744-95
BETWEEN:
MARIA
GONZALEZ,
Complainant,
and
CANADIAN HUMAN RIGHTS
COMMISSION,
Commission,
and
CANADA EMPLOYMENT AND IMMIGRATION
COMMISSION,
Respondent,
and
HUMAN RIGHTS
TRIBUNAL,
Tribunal.
REASONS
FOR ORDER
NOËL J.
This is a reference at the request of
the Attorney General of Canada on a question relating to the constitutional
validity, applicability or operability of subsection 11(7) of the Unemployment
Insurance Act.
More specifically, the issue is whether that subsection is contrary to the Canadian
Human Rights Act
in that it is a discriminatory practice based on family status in the provision
of services.
I THE FACTS
The facts, which are not in issue, are
set out in the parties' Case:
[translation] On or about December 3, 1992,
Maria Gonzalez adopted her son Marc-Antoine Lessard, who was born in Mexico on
September 19, 1992. On or about December 6, 1992, Maria Gonzalez brought her
son home from Mexico.
On or about
December 11, 1992, Maria Gonzalez made a claim for benefit under the Unemployment
Insurance Act, and received ten weeks of parental benefits, as provided for
caring for the child placed with her for the purpose of adoption.
On or about
February 10, 1993, the Canada Employment and Immigration Commission refused to
give Ms. Gonzalez the five weeks of additional benefits she was claiming under
subsection 11(7) of the Unemployment Insurance Act because one of the
requirements in that subsection had not been met, namely that the child in
question must be six months of age or older at the time of placement for the
purpose of adoption.
As section 79 of
the Unemployment Insurance Act allowed her to do, Ms. Gonzalez
appealed that decision to the board of referees, which heard the case and
dismissed the appeal on April 6, 1993, for the same reason.
On or about April
7, 1993, Ms. Gonzalez was informed of her right to appeal the decision of the
board of referees to the umpire.
On or about
August 27, 1993, Ms. Gonzalez filed a complaint with the Canadian Human
Rights Commission alleging that the Canada Employment and Immigration
Commission had engaged in discriminatory practices based on family status in
the provision of services by denying her benefits under subsection 11(7) of the
Unemployment Insurance Act, contrary to section 5 of the Canadian
Human Rights Act.
On or about June
3, 1994, the complaint to the Canadian Human Rights Commission was amended to
add a second ground for the complaint, namely age.
Under subsection
49(1.1) of the Canadian Human Rights Act, the Canadian Human Rights
Commission referred the complaint to a Human Rights Tribunal for inquiry solely
on the ground of family status; a Tribunal was established on January 18,
1995 and replaced on March 25, 1995.
On or about April
13, 1995, under subsection 18.3(2) of the Federal Court Act, the
Attorney General of Canada referred the question of the constitutional
validity, applicability and operability of subsection 11(7) of the Unemployment
Insurance Act to the Federal Court — Trial Division for hearing and
determination.
I would add that the notices provided
for in section 57 of the Federal Court Act were served on the Attorney
General of each of the provinces and that none of them chose to intervene. The
Canadian Human Rights Commission (the "Commission") did join these
proceedings as a party in accordance with Rule 1502 of the Federal Court Rules.
This reference was made subject to the procedure governing applications for
judicial review, pursuant to the directions issued by Pinard J. on May 18,
1995. In those directions, Pinard J. also ordered the Tribunal hearing Ms.
Gonzalez's complaint to refrain from considering the question that was the
subject of the reference before the Court had disposed of it.
II HISTORY OF SUBSECTION 11(7) OF THE U.I.
ACT
On January 1, 1984, when Bill C-156 was
enacted, Parliament for the first time provided for the payment of benefits to
either parent for a maximum of fifteen weeks when an adopted child entered the
home.
These benefits were referred to as "parental" benefits and were
available only to adoptive parents.
In the report that it published on October
23, 1987, the Commission recommended that the U.I. Act be amended to provide
fifteen additional weeks of parental benefits to natural parents, either of
whom would be able to claim them, as in the case of the benefits provided to
adoptive parents.
In the same breath, the Commission confirmed that "maternity"
benefits were by nature intended to provide for the needs of the natural mother
during the period surrounding her pregnancy and confinement and should be
preserved.
On June 7, 1988, the Federal Court —
Trial Division heard an application by a natural father who was claiming
benefits to care for his newborn child, on the same basis as adoptive parents,
when his wife returned to work.
After acknowledging the distinct nature of maternity benefits, Strayer J. held
that the provisions of the U.I. Act that denied parental benefits to natural
fathers caring for infant children so that the mothers could return to paid
employment, even though adoptive parents received such benefits, were
discriminatory. The essence of the opinion stated by Strayer J. on this
question was as follows:
In the light of
the evidence I am satisfied that the distinction which excludes natural parents
from the opportunity of receiving unemployment insurance benefits in respect of
a period for child-care of an infant is pejorative or of negative effect.
Further, it is a substantial disadvantage which the natural parents suffer in
this way. This meets the test for infringement of subsection 15(1) of the
Charter in accordance with jurisprudence such as the Smith, Kline &
French case which is binding on me. Because of the tenuous nature of the
jurisprudence on this subject, however, and the impending decision of the
Supreme Court of Canada in the Andrews case where a more stringent test
was applied to establish infringement of subsection 15(1), I will make a
finding also that the distinctions in question here constitute discrimination
even when measured by those more rigorous tests. The Andrews line of
cases requires that for there to be infringement of subsection 15(1) the
distinction in question must be "unreasonable or unfair". As I have
already indicated, on the face of it this distinction between adoptive and
natural parents has nothing to commend it. While the evidence does suggest
that section 32 is inclusive of situations which are not comparable to those of
natural parents, I am satisfied that there is still a substantial area of
comparability where benefits are significantly different. Such distinctions as
may exist between natural and adoptive parents can be accommodated within the
test that benefits are payable where it is "reasonable" for the
parent to stay home with the child. I find the failure to make benefits on
this basis available to one group and not the other is unreasonable and unfair.
As a result of this decision, Bill C-21 was
introduced in the House of Commons for first reading on June 1, 1989. It
provided, inter alia, for payment of a total of ten weeks of parental
benefits to both natural and adoptive parents, and to either parent.
On September 28, 1989, the legislative
committee responsible for examining the Bill heard submissions from the Open
Door Society,
a group of adoptive parents, urging that Bill C-21 be amended. On that date, the representatives
of that group, Ms. Atkins and Ms. Umbach, appeared before the parliamentary
committee examining the Bill and stated the following:
Ms Umbach: The
government made no mention of the special needs of many of the infants and
older children adopted today. Are you aware that many of the babies placed
today come from difficult backgrounds including serious mental illness, drug
and alcohol addiction, and the increasing possibility of AIDS? Are you also
aware that most of the children over the age of six months come from
backgrounds of serious trauma, including physical or sexual abuse, emotional
and physical deprivation, and neglect?
The government
presented such an incomplete and inadequate case that the federal court judge
had no choice but to find section 32 inequitable. Adoptive parents should not
be punished because the government presented a poor defence.
Ms Atkins: My role
is to set the stage for the solution. We think the government can borrow from
the federal court decision in a way that is virtually costless and does not
punish adoptive parents. Our proposed solution is costless, just, and
Charter-proof.
Let me start by
explaining the cost. There are 140,000 to 150,000 natural-mother claimants and
less than 2,000 adoptive claimants per year through the U.I. system. Clearly,
we must avoid providing equivalent benefits for natural and adoptive parents.
In other words, 15 weeks parental benefits instead of the 10 proposed might
cost an additional $150 million if it were extended to all natural parents
claiming benefits. So we must define the solution in a way that is not
automatically extended to natural parents, but ensures that the inequity is
addressed.
Ms Umbach: We
propose that you add a provision to the parental benefits clause. It should
provide an extra 10 weeks or 15 weeks child care leave where children, for
example, six months or older, are placed or received in the home for the first
time. Require certification from the provincial welfare agency that the child
in question has an emotional or physical history such that it is reasonable
that the extra weeks be granted, over and above the 10-week parental benefit.
This solution would cover close to 80% of adoptive children.
Since it would not
exclude natural parents, for example, in the case of an infant hospitalized for
its first six months of life, it would respect the Charter's interpretation.
Yet it would cost very little. Except in very rare cases, only adoptive
parents would qualify — fewer than 3,000 cases per year.
Honourable
members, adoptive parents and their children should not be punished or put at
risk. But if the adoption benefits provisions of proposed Bill C-21 stay as
they are, we feel this is exactly what will happen.
The child-care
provision we have proposed, which would theoretically be available to natural
parents as well, is a concrete way to rectify this inadvertent injustice. We
do feel that Justice Strayer erred in his decision. Adoptive parenthood is not
comparable in many aspects to natural parenthood. Ideally, all adoptive
parents would qualify for greater parental benefits, and this is less than a
perfect solution.
After considering the various briefs,
the government then went back to the House and proposed an amendment to Bill
C-21:
Mr. William
Kempling (Parliamentary Secretary to Minister of Employment and Immigration):
Mr. Speaker, I want to deal particularly with amendment No. 6 as listed in Votes
and Proceedings, because several members have dealt with this matter of
adoptive benefits. Indeed, we had several briefs that addressed this matter
when the legislative committee was travelling, and the minister with this
amendment is endeavouring to answer the requests of the various people who have
appeared before the committee on it.
On behalf of the
Minister of Employment and Immigration I am pleased to discuss this amendment
to clause 9 of Bill C-21. It provides for an additional five weeks of parental
benefits, fifteen weeks rather than ten, in cases where a child six months of
age or older enters the home for the first time. To be eligible for this added
benefit the claimant will have to submit a certificate from a medical
practitioner or the agency which places the child with the parents. This
certificate will confirm that the child suffers from a physical, psychological
or emotional condition requiring an additional period of parental care.
This amendment
addresses the special circumstances parents face when an infant has been
institutionalized or otherwise prevented from going home for an extended period
after birth. It will also be relevant in adoption cases where the children are
six months of age or older. It is estimated that this covers approximately 90
per cent of the adoptions in Canada. When a child six months of age or
older is entering a home for the first time, regardless of the reasons, it
makes sense that a parent needs an extended period of time to welcome that
child, establish daily routines, and develop a secure parent-child
relationship.
On October 4, 1989, the government amended Bill
C-21 to extend parental leave by five weeks for both adoptive parents and
natural parents, based on the two requirements found in subsection 11(7) of the
Act: that the child arrives at the home after reaching the age of six months and
that a certificate is issued stating that an additional period of care is
required.
Bill C-21 was passed by the House of Commons on November 6, 1989.
Thus, the U.I. Act provides at present
that parental benefits may be divided between the two parents, up to a maximum
of ten weeks, and that a five-week extension may be given where the two
prerequisites in subsection 11(7), set out supra, are met.
III QUESTION BEFORE THE COURT
In the reference by the Attorney
General of Canada, the following question was submitted:
[translation] Is subsection 11(7) of the Unemployment
Insurance Act, R.S.C. 1985, c. U-1, contrary to the Canadian Human
Rights Act, R.S.C. 1985, c. H-6, in that it is a discriminatory practice
based on family status in the provision of services?
IV RELEVANT STATUTORY PROVISIONS
(A) Canadian Human Rights Act
2. The purpose of
this Act is to extend the laws in Canada to give effect, within the purview of
matters coming within the legislative authority of Parliament, to the principle
that every individual should have an equal opportunity with other individuals
to make for himself or herself the life that he or she is able and wishes to
have, consistent with his or her duties and obligations as a member of society,
without being hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin, colour, religion, age, sex,
marital status, family status, disability or conviction for an offence for
which a pardon has been granted.
3.(1) For all
purposes of this Act, race, national or ethnic origin, colour, religion, age,
sex, marital status, family status, disability and conviction for which a
pardon has been granted are prohibited grounds of discrimination.
(2) Where the
ground of discrimination is pregnancy or child-birth, the discrimination shall
be deemed to be on the ground of sex.
5. It is a
discriminatory practice in the provision of goods, services, facilities or
accommodation customarily available to the general public
(a) to
deny, or to deny access to, any such good, service, facility or accommodation
to any individual, or
(b) to
differentiate adversely in relation to any individual,
on a prohibited
ground of discrimination.
15. It is not a
discriminatory practice if
(g) in the
circumstances described in section 5 or 6, an individual is denied any goods,
services, facilities or accommodation or access thereto or occupancy of any
commercial premises or residential accommodation or is a victim of any adverse
differentiation and there is bona fide justification for that denial or
differentiation.
(B) Unemployment Insurance Act
11.(3) Subject
to subsection (7), the maximum number of weeks for which benefit may be paid in
a benefit period
(a) for the
reason of pregnancy is fifteen;
(b) for the
reason of caring for one or more new-born children of the claimant or one or
more children placed with the claimant for the purpose of adoption is ten; and
(c) for the
reason of prescribed illness, injury or quarantine is fifteen.
(4) Subject to
subsection (7), the maximum number of weeks for which benefit may be paid
(a) in
respect of a single pregnancy is fifteen; and
(b) in
respect of caring for one or more new-born or adopted children as a result of a
single pregnancy or placement is ten.
(7) The maximum
number of ten weeks specified in paragraphs (3)(b) and 4(b) is
extended to fifteen weeks where
(a) a child
referred to in paragraph (3)(b) or (4)(b) is six months of age or
older at the time of the child's arrival at the claimant's home or actual placement
with the claimant for the purpose of adoption; and
(b) a
medical practitioner or the agency that placed the child certifies that the
child suffers from a physical, psychological or emotional condition that
requires an additional period of parental care.
20.(1)
Notwithstanding section 14, but subject to this section, benefit is payable to
a major attachment claimant to remain at home to care for one or more new-born
children of that claimant or one or more children placed with that claimant for
the purpose of adoption pursuant to the laws governing adoption in the province
in which that claimant resides.
(2) Subject to
section 11, benefit under this section is payable for each week of unemployment
in the period
(a) that
begins with the week in which the new-born child or children arrive at the
claimant's home or the child or children are actually placed with the claimant
for the purpose of adoption; and
(b) that
ends fifty-two weeks after the week in which the new-born child or children
arrive at the claimant's home or the child or children are actually placed with
the claimant for the purpose of adoption.
V POSITION OF THE PARTIES
The Commission argues that subsection
11(7) of the U.I. Act discriminates on the prohibited ground of family status
in the provision of services, contrary to section 5 of the CHRA. More
specifically, the Commission argues that the effect of this discrimination is
to deny additional benefits to adoptive and natural parents of children even
when the children need parental care in accordance with the criteria set out in
the Act, solely on the ground that they are less than six months of age when
they arrive at the home. According to the Commission, that criterion is
arbitrary and irrelevant and has a discriminatory effect on families which
happen to receive their children in the home before they reach the age of six
months.
The Attorney General of Canada, on
behalf of himself and the respondent, argues that subsection 11(7) of the U.I.
Act is not contrary to section 5 of the CHRA because it is not a discriminatory
practice in the provision of services based on family status. According to the
Attorney General, subsection 11(7) does not discriminate on the prohibited
ground of family status since it treats biological and adoptive families in
exactly the same manner. He added that the impugned distinction is based on
the age of the child and that this is a personal characteristic of the child,
not of the child's parents or family. According to the Attorney General, the child's
age cannot be cited as a ground of discrimination based on family status.
If subsection 11(7) does differentiate adversely
in relation to access to benefits on a prohibited ground of discrimination, the
Attorney General argues that Parliament had a bona fide justification
for doing so within the meaning of section 15 of the CHRA and accordingly
that subsection 11(7) is not a discriminatory practice. The Attorney General
submits that Bill C-21 was introduced in a context of budget cuts. At that time,
Parliament had to make choices, and one of those choices was to set the number
of weeks of parental benefits that could be granted at ten. The exceptional
five-week extension added to the Bill was intended only for parents who met the
two requirements imposed. According to the Attorney General, this was a free
and informed choice, stemming from budget constraints. As such, that choice
should not be subject to review by the Court.
VI ANALYSIS AND DECISION
Before addressing the essence of this
matter, it would be wise to recall that Bill C-21, as it was introduced in the
House of Commons for the first time on June 1, 1989, gave full effect to
the judgment in Schachter. In that case, Strayer J. had ordered
that natural parents be allowed to claim benefits equal to those paid to
adoptive parents. However, he had left it to Parliament to determine how that
objective should be achieved:
Instead I consider
it appropriate and just to . . . leave it to Parliament to remedy the situation
in accordance with the Charter, either by extending similar benefits to natural
parents, or by eliminating the benefits given to adoptive parents, or by some
provision of more limited benefits on an equal basis to both adoptive and
natural parents in respect of child-care. I am not in effect telling
Parliament that it must follow one route or the other: all I am determining is
that if it is going to provide such benefits it must provide them on a
non-discriminatory basis. I am prepared to assume at this stage that Parliament
will take the necessary action to render equal a system of benefits found by
this Court to be unequal.
In response to that decision,
Parliament could have saved public funds by reducing benefits to ten weeks for
everyone; added to its expenditures by increasing benefits to fifteen weeks for
everyone; or neutralized the monetary effect of the decision by reducing
benefits to the level required for that purpose and treating both classes of
parents identically. The initial effect of Bill C‑21 was to provide
benefits to both groups of parents for a ten-week period.
Here I would note, in passing, that
Strayer J. had also given his judgment immediate effect by ordering that, in
the interim,
natural parents would be entitled to the same benefits as those accorded to
adoptive parents.
This approach was challenged by the Attorney General, acting for the government
and the Canada Employment and Immigration Commission. The Federal Court of
Appeal dismissed the appeal,
but the Supreme Court allowed it.
According to the Supreme Court, Strayer J. was wrong to give immediate effect
to his judgment. Lamer C.J., stating the unanimous opinion of the Court on
this point, set aside the trial judgment as follows:
The benefit with
which we are concerned here is a monetary benefit for parents under the Unemployment
Insurance Act, 1971, not one which Parliament is constitutionally obliged
to provide to the included group or the excluded group. What Parliament is
obliged to do, by virtue of the conceded s. 15 violation, is equalize the
provision of that benefit. The benefit itself is not constitutionally
prohibited; it is simply underinclusive. Thus striking down the provision
immediately would be inappropriate as such a course of action would deprive
eligible persons of a benefit without providing any relief to the respondent.
Such a situation demands, at the very least, that the operation of any
declaration of invalidity be suspended to allow Parliament time to bring the
provision into line with constitutional requirements. All of the intervening
Attorneys General agreed with this proposition, although, for the most part,
they intervened on behalf of the appellants.
The disposition in the judgment of the
Supreme Court reads as follows:
. . . the appeal
is allowed and the judgment of the trial judge set aside. Normally, I would
order that s. 32 of the Unemployment Insurance Act, 1971 (subsequently
s. 20 of the Unemployment Insurance Act, 1985) be struck down pursuant
to s. 52 and be declared to be of no force or effect, and I would further
suspend the operation of this declaration to allow Parliament to amend the
legislation to bring it into line with its constitutional obligations. There
is, however, no need for a declaration of invalidity or a suspension thereof at
this stage of the matter given the November 1990 repeal and replacement of the
impugned provision.
The last sentence must be read in
conjunction with a comment made earlier by Lamer C.J., as follows:
It should be noted
that the impugned provision has since been amended by Parliament to extend
parental benefits to natural parents on the same footing as they are provided
to adoptive parents for a period totalling 10 weeks rather than the original
15.
Thus, the Supreme Court based its
decision on the assumption that Parliament had met its constitutional
obligations by providing for equal entitlement to benefits on the part of both
classes of parents, in accordance with the judgment of the Federal Court.
In response to representations by the
group of adoptive parents, the right to an extended five-week period was added
to the Bill. In its original form, the Bill provided for ten weeks, on
identical terms and conditions for both groups of parents. That group, which
was not satisfied with the original proposal, made submissions to the
parliamentary committee asserting that the Schachter case had been badly
argued and suggested that the Court would not have found that adoptive parents
were treated unequally if their views had been presented better. The
representatives of that group came up with and proposed an amendment that met
the requirements of the Canadian Charter of Rights and Freedoms on paper
but in fact preserved the unequal treatment of the two groups of parents.
In suggesting that only parents of
children who were six months of age or older when they arrived home be entitled
to additional benefits, this group asserted that 80 per cent of adoptive
children
would qualify, while natural children would for all practical purposes be
excluded.
This solution was presented to the parliamentary committee as one that
"would cost nothing" since, appearances notwithstanding, its effect
was to preserve the advantageous treatment that the former Act had accorded to
adoptive parents and the disadvantageous treatment accorded to natural parents.
As we know, Parliament decided to enact
the amendment proposed by this group of parents and adopted the criterion of
age at the time of arrival at the home to circumscribe entitlement to the
additional five weeks of benefits provided for in subsection 11(7) of the U.I.
Act.
From this brief review of the context
in which subsection 11(7) was enacted, we can get a better idea of the reason
behind the distinction that is now made between parents of children who arrive
home after the age of six months and those who arrive before reaching that age,
from the standpoint of the people who proposed it.
However, in analysing the purpose of
the distinction in the context of this reference, I must assume that Parliament
acted in accordance with the law. As the Supreme Court pointed out in Schachter,
Parliament was obliged, as a result of the Federal Court’s decision, to
equalize the benefits that adoptive parents and natural parents may claim. Since the principle of
equality between adoptive and natural parents with respect to parental benefits
was laid down in a final decision based on the Charter, everyone, including our
elected representatives, was obliged to act in accordance with it. In fact,
Parliament’s stated purpose in enacting the amendments to section 11 of the
U.I. Act brought about by Bill C-21 was to comply with the Charter by giving
effect to the Court's decision in Schachter.
Thus, in analysing the reason behind
the distinction made by Parliament in enacting subsection 11(7), I cannot
ascribe to it the reason for exclusion that motivated the group of adoptive
parents who suggested it, since that group's objective in inserting the age
requirement was precisely to preserve the inequality between natural and
adoptive parents under the aegis of a provision that appeared to treat both
groups of parents equally. On the contrary, I must assume that in enacting
subsection 11(7) Parliament intended to act in accordance with the principle of
the equality of adoptive and natural parents with respect to parental
benefits. On its face, subsection 11(7) complies with that principle, and
since Parliament was obliged to act in accordance with it, I assume that it did
so. Moreover, counsel for the Attorney General and the respondent expressed
agreement on this point at the hearing.
With this in mind, we may now inquire
into the purpose of the age requirement in subsection 11(7) of the Act, and in
particular the question of whether this distinction is such that subsection
11(7) amounts to a discriminatory practice. When the amendment was introduced
in the House of Commons, the Parliamentary Secretary to the Minister
responsible described its purpose as follows:
This amendment
addresses the special circumstances parents face when an infant has been
institutionalized or otherwise prevented from going home for an extended period
after birth. . . . When a child six months of age or older is entering a home
for the first time, regardless of the reasons, it makes sense that a parent
needs an extended period of time to welcome that child, establish daily
routines, and develop a secure parent-child relationship.
According to the Commission, the
reasoning behind according parents whose children arrive at their home after
the age of six months different treatment from parents who happen to receive
their children earlier has no rational basis and discriminates against parents
in the latter class. The Commission proposes the following definition as the
basis of its position:
. . .
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.
I begin my analysis by stating that
Parliament is constantly called upon to make choices, and that the mere
existence of a distinction is not evocative of discrimination. Only where a
distinction is made on a prohibited ground of discrimination within the meaning
of section 5 of the CHRA can it give rise to discriminatory treatment. Keeping
in mind the tests applied by the Supreme Court under section 15 of the Charter, a distinction may amount
to discrimination if there is no reason for it in a particular legislative
context; although the converse is not necessarily true, an irrelevant or arbitrary
distinction does suggest the existence of a discriminatory distinction.
What then are the virtues of the age
requirement found in subsection 11(7) of the U.I. Act? Before endeavouring to
answer that question, it is worthwhile examining the other requirement found in
that subsection namely the certification by a medical practitioner or the
agency that placed the child that the child in question suffers from a
physical, psychological or emotional condition that requires an additional
period of parental care. This second requirement unequivocally indicates that
the purpose of the additional benefits is to enable parents to tend to children
who, because of their condition, are in need of parental care for an extended
period. Thus, the purpose of the legislation is the welfare of the child, and
the means used to achieve that objective is to allow one of the parents to stay
home to care for the child for the extended period by providing that parent
with an alternative means of support.
Based on this, it may be seen that any
relationship that there may be between the age of the child at the time of
arrival at the home and the legislative objective is not apparent. A child
who, because of his or her emotional, physical or psychological condition,
needs extended care when he or she arrives home at the age of six months is no
less in need of that care if he or she arrives home earlier. Ms. Gonzalez's
case illustrates this in an adoption context,
and it is also true in the case of a natural child. In fact, there is no
rational connection between the six month age demanded by subsection 11(7) and
the child's condition. The need for care of a child who suffers from an
illness can in no way be measured by reference to the age at which he or she
entered the home. Moreover, it can easily be imagined that the more ill the
child, the more he or she will need to enter the home speedily, in order to
benefit from parental contact. The argument that a sick child who needs
extended care, according to a medical certificate, and who enters the home at
the age of six months is more in need of extended care than a child who is also
sick and for whom the same certificate is provided, and who enters the home
earlier, is totally devoid of any rational basis. In the statutory context,
the age of the child is just as arbitrary a condition as, for example, a
requirement relating to the length or colour of the child's hair at the time he
or she enters the home.
If a distinction which forms the basis
for the grant of a right or privilege is devoid of any rational connection with
the legislative objective, it is in the result unreasonable. Denying a person
a right or privilege which, according to the purpose of the legislation, is
intended for him or her, on a ground that is totally devoid of reason amounts
to denying that person the right or privilege for no reason. I can find no
virtue in this age requirement. All I see here is that it has no relevance in
the legislative context and that it excludes parents of children in need of
extended care on a purely arbitrary basis, solely on the ground that the
children entered the home before reaching the age of six months.
I therefore conclude that the
distinction in respect of age is discriminatory within the meaning of section 5
of the CHRA.
However, the Attorney General contends
that the distinction in respect of age cannot be cited as a ground based on
family status. In his view, the age at which a child enters the home is a
personal characteristic of the child, and not of the claimant as an adoptive or
natural parent of the child or as the person responsible for the family. I do
not share that opinion. The age at which a child enters the home is a
characteristic of the family that receives the child, since its effect, as between
children who have the same needs, is to entitle or disentitle the family to
extended benefits based on the age at which the child enters the home.
The Attorney General also argues that
the refusal to pay benefits results from the operation of the Act and that the
denial alleged is not the result of the actions of the respondent as a provider
of services within the meaning of section 5 of the CHRA. It seems to me
that this issue was rightly conceded by the Attorney General in Druken. One of the issues raised
in that case was precisely the question of whether the provision of
unemployment insurance benefits was a service customarily available to the
general public within the meaning of section 5 of the CHRA:
While they were
raised in the Attorney General's factum, arguments that the provision of
unemployment insurance benefits is not a service customarily available to the
general public and that its denial, by virtue of paragraphs 3(2)(c) of
the U.I. Act and 14(a) [as am. by SOR/78-710, s. 1] of the U.I.
Regulations, is based on marital and/or family status, were not pursued. The
latter proposition seems so self-evident as not to call for comment. As to the
former, the applicant appears to have found persuasive the dictum expressed in Singh
(Re), [1989] 1 F.C. 430 (C.A.) in which it was said by Hugessen J.,
delivering the judgment of this Court, at page 440:
It is indeed
arguable that the qualifying words of section 5
5. . . . provision
of . . . services . . . customarily available to the general public
can only serve a
limiting role in the context of services rendered by private persons or bodies;
that, by definition, services rendered by public servants at public expense are
services to the public and therefore fall within the ambit of section 5. It is
not, however, necessary to make any final determination on the point at this
stage and it is enough to state that it is not by any means clear to me that
the services rendered, both in Canada and abroad, by the officers charged with
the administration of the Immigration Act, 1976 are not services
customarily available to the general public.
Despite the fact that the Attorney
General made no concession on this point in the instant reference, it seems
plain to me that the unemployment insurance system is a service customarily
available to the general public, and my attention was not drawn to any reason
that would allow me to find that this service falls outside the ambit of
section 5 on the ground that it is provided by the government.
In any event, the Attorney General,
relying on the decision of the Supreme Court in Berg, contends that the
complainant is excepted from the group of people for whom the service is
intended. According to the Attorney General, each service is directed to its
own public, and the CHRA prohibits the making of distinctions only within the
eligibility criteria defined by the provider of those services. That is no
doubt true, but in this instance the impugned distinction is found precisely
within the group of people for whom the service is intended. On this point, it is
usefull to note the caveat that Lamer C.J. clearly stated in Berg:
Eligibility
criteria, as long as they are non-discriminatory, are a necessary part
of most services, in that they ensure that the service reaches only its
intended beneficiaries, its "public", thereby avoiding overuse and
unnecessary depletion of scarce resources. (Emphasis added.)
Lastly, the Attorney General contends
that if, by enacting subsection 11(7), Parliament engaged in a discriminatory
practice, it was justified in doing so. He cited section 15 of the CHRA, which
provides that if an individual is denied any services or is a victim of adverse
differentiation on a prohibited ground of discrimination, it is not a
discriminatory practice if the provider of the services had bona fide
justification for the denial or differentiation.
According to the Attorney General, Bill
C-21 was enacted by the House of Commons in a context of budget cuts. Parliament made choices
and decided to reduce the number of weeks of parental benefits that could be
granted from fifteen to ten. The exceptional five-week extension that was
added to Bill C-21 on October 4, 1989 was intended only for parents who met the
two requirements provided. According to the Attorney General, Parliament was
justified in discriminating on this prohibited ground in order to control its
expenditures.
I could perhaps see how such an
argument might be sound if the only method available to Parliament for
controlling its expenditures had been to enact a provision that discriminated
on a prohibited ground. However, that is not the case. Pursuant to the
decision in Schachter, Parliament still had the most absolute discretion
as to how it would comply with that judgment. As I noted earlier, it was open
to Parliament to increase, reduce or neutralize eligibility for benefits, but
there was nothing that obliged it to discriminate on a prohibited ground in
order to do so.
Moreover, it is worth noting that the
effect of adding subsection 11(7) to Bill C-21 on October 4, 1989 was to
increase government expenditures, since in its original form the Bill provided
only for ten weeks of parental benefits. We must therefore recognize that by
creating entitlement to extended benefits, Parliament was prepared to allocate
additional funding to assist parents of children in need of extended care. On the other hand, there
was nothing to compel Parliament to discriminate on a prohibited ground in
order to make up this budget envelope. Parliament was entirely at liberty to
reduce the amount of the benefits or the benefit period in order to make the
measure acceptable for the purposes of its budget. Accordingly, the Attorney
General cannot justify the discrimination on the ground of budget constraints.
I therefore find that subsection 11(7)
of the U.I. Act is discriminatory in that it incorporates a prohibited ground
of discrimination the effect of which is to exclude parents of children who
need extended care from receiving extended benefits, solely on the ground that
those children enter the home before reaching the age of six months.
One of the heads of the relief sought
by the Commission is that paragraph 11(7)(a) of the U.I. Act be
declared unlawful, thereby leaving the requirement set out in paragraph 11(7)(b) as the only criterion for
access to the extended benefit period. This is one way of eliminating the
unequal treatment that is the result of subsection 11(7), but it is not the
only way. As Strayer J. said in Schachter, it is up to Parliament to
choose the method of ensuring equal treatment. The evidence before me shows
that it would cost an additional $16 million if the extended benefits were
preserved and the age requirement eliminated.
At the other extreme, some unidentified savings would be realized if the
extended benefits were simply abolished. Somewhere between these two extremes,
Parliament could neutralize the budgetary effect of the remedial measure by
reducing the period of extended benefits or the value of the benefits to a
level that would coincide, in terms of costs, with the present level of the
program.
Moreover, as the Supreme Court of
Canada said, we are not dealing here with a benefit that Parliament is required
to pay to either of the two groups in question. The benefit is one that
Parliament is entitled to accord to the people who have access to it at
present; the only issue is the discriminatory condition. As the Supreme Court
said in Schachter:
. . . striking
down the provision immediately would be inappropriate as such a course of
action would deprive eligible persons of a benefit without providing any relief
to the respondent.
Having regard to the foregoing, the answer to the
question submitted in this reference is yes, and an order will issue declaring
that subsection 11(7) of the U.I. Act is discriminatory since it discriminates
on the prohibited ground of family status in the provision of services,
contrary to section 5 of the CHRA, by denying extended benefits to parents of
children who require extended care because of their health, solely on the
ground that those children enter the home before reaching the age of six
months. The declaration will be suspended for a period of twelve months from
the date of the order to allow Parliament to remedy the discriminatory
treatment by such method as it may choose. If Parliament should fail to act
within the time allowed, the respondent shall then cease to apply paragraph
11(7)(a) of the U.I. Act, and the Tribunal hearing Ms. Gonzalez's
complaint shall dispose of it on the assumption that paragraph 11(7)(a)
of the U.I. Act is contrary to the CHRA.
Marc Noël
Judge
Ottawa, Ontario
June 6, 1997
Certified true translation
C. Delon, LL.L.
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