Date: 19991217
Docket: A-197-98
CORAM: ISAAC, J.A.
McDONALD, J.A.
SEXTON, J.A.
BETWEEN:
ASTRID SOLLBACH
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Calgary, Alberta, on Thursday, December 16,1999
Judgment delivered at Calgary, Alberta, on Friday, December 17, 1999
REASONS FOR JUDGMENT BY: McDONALD, J.A.
Date: 19991217
Docket: A-197-98
CORAM: ISAAC, J.A.
McDONALD, J.A.
SEXTON, J.A.
BETWEEN:
ASTRID SOLLBACH
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Calgary (Alberta)
on Friday, December 17, 1999)
McDONALD, J.A.:
[1] This is an application for judicial review pursuant to s. 28 of the Federal Court Act of C.U.B. decision 40494 of the Unemployment Insurance Umpire in which he determined that s. 11 of the Unemployment Insurance Act does not violate s 15 of the Charter.
[2] The claimant quit her job in Toronto to follow her husband to his job in Calgary. She was eligible to receive regular benefits for 27 weeks but after 18 weeks these benefits at her request were converted to maternity benefits due to her pregnancy. Maternity benefits were then paid for 12 weeks. Once she was paid 18 weeks of regular benefits and 12 weeks of maternity benefits the Commission refused any further payments.
[3] Ms. Sollbach appealed this decision to a Board of Referees claiming that she was entitled to 27 weeks of regular benefits, 15 weeks of maternity benefits and 10 weeks of parental benefits for a total of 52 weeks of payments. She argued that since these 52 weeks were limited to 30 weeks by s. 11 of the Act, that s. 11 was contrary to s. 15 of the Charter. the Board of Referees did not decide whether s. 11 was contrary to s. 15 of the Charter since they determined that they had no jurisdiction to grant the Charter relief claimed.
[4] Ultimately, the Umpire concluded that s. 11 was not contrary to s. 15 of the Charter and it is from this decision that this appeal is brought. We agree with the Umpire. In our view s. 11 (6) does not draw a distinction between pregnant women and others. A single father who obtains benefits because he cares for his children is equally subject to the 30 week limitation on benefits as are pregnant women. A single male who is injured while receiving regular benefits is also subject to the 30 week limitation. Indeed all recipients of special benefits are subject to the 30 week limitation. Many other examples could be drawn to establish that the subsection is gender neutral.
[5] Counsel for the applicant argues that although neutral on its face, s. 16 violates the applicant's s. 15 (1) Charter rights because she is a member of a group (pregnant women) who are disproportionately affected by its application, in other words he contends that this is a case of adverse affect discrimination.
[6] The Applicants also suggested that the 27 week period for regular unemployment insurance was for the purpose of looking for work. The Respondent in turn argued that the purpose of the statute was to provide compensation or loss of earnings from employment. He pointed to the Digest of Benefit. Entitlement Principles published by the Canada Employment and Immigration Commission which stated that "the primary purpose of the unemployment insurance plan is to compensate workers in case of involuntary unemployment". Counsel for the Respondent pointed out that the provision for payment of benefits to pregnant women is an exception to this concept.
[7] The same text, in commenting on the provisions for these benefits said:
| The principle underlying these benefits was and continues to be that the mother should be protected from an earnings loss caused by her physical incapacity to work or seek work in the weeks surrounding the birth. |
[8] We accept the Respondents' submissions.
[9] We find that the Applicant has failed to show that pregnant women are discriminated against as a group under the legislation. Pregnant women are treated exactly the same as men and women on parental leave and the same as men and women who suffer from a disability. All are limited to a maximum of 30 weeks of compensation.
[10] In addition we were told that formerly there was no unemployment compensation for pregnant women who voluntarily left their employment. Therefore the benefits provided by s. 16 was ameliorative legislation.
[11] The most recent decision of the Supreme Court of Canada to address s. 15 of the Charter is Law vs. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497, which was not decided at the time of the Umpire's decision.
[12] After reviewing the Supreme Court jurisprudence on the purpose of s. 15 Justice Iacobucci for the unanimous court concludes:
| It may be said that the purpose of s. 15 (1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where thedifferential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. |
| The equality guarantee in s.15 (1) of the Charter must be understood and applied in light of the above understanding of its purpose. The overriding concern with protecting and promoting human dignity in the sense just described infuses all elements of the discrimination analysis (Law supra. at para. 51-52). |
[13] Iacobucci, J. also stated that whether a law is discriminatory or not depends on two perpectives; the subjective perspective of the person alleging discrimination and the perspective of a reasonable person looking at the matter objectively.
[14] Therefore, it is our opinion that in context, "a reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as the claimant" would not conclude that s. 11 (6) demeans a claimant's dignity. In our view, such a reasonable person would take into account the practical fact that Ms. Sollbach was paid three weeks more benefits than she would have been entitled had she simply claimed regular unemployment insurance benefits. A reasonable person would also take into account the fact that s. 11 (6) of the Act draws distinctions merely on the basis of one's entitlement to ordinary unemployment benefits, which is not a personal characteristic intimately tied to one's essential human dignity. A reasonable person would appreciate that this law is ameliorative. It could hardly be said that such a law violates one's essential human dignity nor are they necessarily discriminatory.
[15] In the Law case at paragraph 103, Mr. Justice Iacobucci found that where the legislative provisions being attacked were ameliorative in nature, this supported the view that the provisions did not violate essential human dignity. Therefore they did not contravene s. 15 (1) of the Charter and the same can be said of the provisions in this case.
[16] In the end result, on the facts of this case we are unable to conclude
that s. 11 violates s. 15 of the Charter.
[17] The appeal will be dismissed.
"F. Joseph McDonald"
J.A.
FEDERAL COURT OF APPEAL
Date: 19991217
Docket: A-197-98
BETWEEN:
ASTRID SOLLBACH
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-197-98
STYLE OF CAUSE: ASTRID SOLLBACH v. THE QUEEN
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: Thursday, December 16,1999
REASONS FOR JUDGMENT OF McDONALD, J.A.
DATED: December 17, 1999
APPEARANCES:
Mr. David Tupper for the Applicant
Mr. Louis A. T. Williams for the Respondent
SOLICITORS OF RECORD:
Blake, Cassels & Graydon
Calgary, Alberta for the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
Ottawa, Ontario for the Respondent
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