Date: 20011211
Docket: A-435-00
Neutral citation: 2001 FCA 385
CORAM: STONE J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
CORY BROWN
Respondent
Heard at Toronto, Ontario, Monday, December 10, 2001.
Judgment delivered from the Bench at Toronto, Ontario,
on Monday, December 10, 2001
REASONS FOR JUDGMENT BY: EVANS J.A.
Date: 20011211
Docket: A-435-00
Neutral citation: 2001 FCA 385
CORAM: STONE J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
CORY BROWN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Monday, December 10, 2001)
EVANS J.A.
[1] Cory Brown returned to work in the spring of 1999, after taking the twenty-five weeks of maternity and parental leave to which she was entitled. Two months later, her employer went out of business and she lost her job.
[2] When Ms. Brown applied for employment insurance benefits the Canada Employment Insurance Commission told her that she was only entitled to benefits for five weeks, because she had already received twenty-five of the statutory maximum of thirty weeks of benefits for which she was eligible in that benefit period by virtue of paragraph 12(6)(b) of the Employment Insurance Act, S.C. 1996, c. 23.
[3] Her appeal to the Board of Referees was unsuccessful, but an Umpire allowed her appeal from the Board: CUB 48279. The Umpire held, in effect, that, since only women can claim maternity benefits, it is discriminatory to include the weeks of maternity benefits in a calculation of the number of weeks of regular benefits to which a claimant is entitled. In reaching this conclusion, he appears to have agreed with the opinion of the dissenting member of the Board of Referees, namely that the denial of Ms. Brown's claim for the full thirty weeks of benefits was gender discrimination in breach of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[4] The Attorney General has made an application for judicial review to set aside that decision. The issue before us is whether the Umpire erred in law when he upheld Ms. Brown's claim that the statutory cap of thirty weeks did not include the weeks in which she had received maternity benefits.
[5] We are all of the opinion that the application must be allowed and the Umpire's decision set aside. The Umpire did not base his decision on section 15 of the Canadian Charter of Rights and Freedoms, presumably because Ms. Brown had not given notice of a constitutional question as required by subsection 57(1) of the Federal Court Act, R.S.C. 1985, c. F-7. However, this Court has already rejected a challenge under section 15 of the Charter to the validity of the statutory maximum number of weeks of benefits and, in particular, to the inclusion of "special benefits", such as maternity benefits, in the determination of the number of weeks of employment insurance benefits to which an applicant is entitled: Sollbach v. Canada (Attorney General) (1999), 252 N.R. 137 (F.C.A.).
[6] Since the Court has found that the statutory cap on the weeks of regular benefits payable to a claimant who has received maternity benefits in the same benefit period is not discriminatory for the purpose of section 15 of the Charter, it would be unjustifiable to hold that the same provision is discriminatory for the purpose of the Canadian Human Rights Act. Further, counsel was unable to refer us to any authority for the proposition that, on an appeal from a Board of Referees, it is open to an Umpire to read out of the Employment Insurance Act a clear and otherwise valid provision on the ground that it is contrary to the Canadian Human Rights Act.
[7] For these reasons, the appeal will be allowed, the decision of the Umpire set aside, and the matter returned to the Chief Umpire, or to an Umpire designated by him, for redetermination accordingly. There will be no order as to costs.
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-435-00
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Applicant
- and -
CORY BROWN
Respondent
DATE OF HEARING: MONDAY, DECEMBER 10, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: EVANS J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON MONDAY,
DECEMBER 10, 2001.
APPEARANCES BY: Mr. Derek Edwards
For the Applicant
Mr. Robert A. McGill
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
For the Applicant
Robert A. McGill
Barrister & Solicitor
100 Fullarton Street
London, Ontario
N6A 1K1
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20011211
Docket: A-435-00
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
CORY BROWN
Respondent
REASONS FOR JUDGMENT
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