Date: 19971209
Docket: A-216-96
CORAM: STRAYER J.A.
LINDEN J.A.
McDONALD J.A.
B E T W E E N:
DIANE NISHRI
Applicant
" and "
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario on Tuesday, October 21, 1997
Judgment rendered at Ottawa, Ontario, on Tuesday, December 9, 1997
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: LINDEN J.A.
McDONALD J.A.
Date: 19971209
Docket: A-216-96
CORAM: STRAYER J.A.
LINDEN J.A.
McDONALD J.A.
B E T W E E N:
DIANE NISHRI
Applicant
" and "
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
Introduction
[1] This is an application for judicial review of a decision dated January 26, 1996 of an Umpire acting under the Unemployment Insurance Act.
Facts
[2] The applicant had a child on September 5, 1990. She established a claim for maternity benefits and received fifteen weeks of such benefits extending from September 16, 1990 to December 29, 1990. About November 12, 1990 she applied for child-care benefits which she wished to commence on December 30, 1990 after her maternity benefits were exhausted.
[3] After more than a year of consideration by Parliament, Royal Assent was given on October 23, 1990 to an Act amending the Unemployment Insurance Act. Section 14 of the amending Act amended section 20 of the Unemployment Insurance Act in order to provide child-care benefits for natural parents.1 This amending Act also had certain transitional provisions including the following:
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(5) Where a claimant has established a benefit period before the coming into force of section 14, and the claimant would have been entitled to benefit under section 20 of the Unemployment Insurance Act, as amended by section 14, if the benefit period had been established after its coming into force, the claimant shall be entitled to benefit under the amended section 20 as if the benefit period had been established after the coming into force of section 14, subject to the following conditions: |
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* * * * * * * * * * * * * * * * * * * * |
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(b) the child or children in respect of whom the claim is made must have been born, or actually placed with the claimant for adoption, after the coming into force of section 14. |
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This Act was brought into force on November 18, 1990. As I understand it, by the opening words of subsection 56(5) as quoted above the claimant here would have been entitled to child-care benefits after her maternity benefits expired, were it not for the provisions of paragraphs 56(5)(b) which confine the new benefits to parents whose child was born after the statute came into force, namely after November 18, 1990. The claimant's child was born over two months before that date.
[4] Thus when the claimant, in light of this statute, applied for child-care benefits, she was ultimately advised by the Unemployment Insurance Commission on April 24, 1991 that:
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. . . . Sections 20 and 20.1 of the Act as they read prior to November 18, 1990, provide for the payment of adoption and paternity benefits only. In addition, you are not entitled to parental benefits under the transitional provisions of Clause 56 of the Statutes of Canada, Chapter 40 (Bill C-21) as the child was born prior to November 18, 1990. |
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[5] The applicant appealed this decision to a Board of Referees and sought to raise a constitutional issue before the Board under section 15 of the Charter. After its second hearing the Board on August 16, 1991 decided, in light of the Tétrault-Gadoury2 decision of the Supreme Court, that it had no jurisdiction to consider the Charter issue. As it was satisfied that the applicant did not qualify for parental benefits under the Act as now worded, it dismissed the appeal. The applicant then appealed that decision to an Umpire and was directed to serve a notice of a constitutional question on the Attorneys General pursuant to section 57 of the Federal Court Act. In due course this was done and the matter came on for hearing before an Umpire on October 12, 1995. At that hearing the very recent decision of this Court in A.G. of Canada v. Faltermeier3 was brought to the Umpire's attention. As counsel for the Commission obviously relied heavily on that decision, the learned Umpire adjourned and gave the parties time to submit written arguments on its applicability to this case. After receiving written argument, and without a further hearing, the learned Umpire proceeded to dismiss the appeal. He concluded as follows:
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It is my firm opinion that the Faltermeier judgment already referred to in my October 20th decision is binding on me. There is no reason in law to distinguish it. There is no doubt that Mr. Jaworski's observation in the submission of January 5, 1996 is particularly germane to the Charter argument herein. Mr. Justice Marceau said in Attorney General of Canada v. Faltermeier "Nevertheless it is beyond the jurisdiction of the Umpire or of any Court to fashion social welfare legislation out of existing acts of Parliament which are not addressed to solving this problem. The existence of the Charter does not mandate this type of intrusion into the legislative domain". (Emphasis added). |
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This Umpire has always been firmly convinced that lower Courts should be extremely careful in any venture to overrule the will of Parliament by colourable judgments which are dangerously close to legislating in interpreting the Charter. Such endeavours should be left to Appellate Courts, should they wish to so interpret the Charter. |
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[6] The applicant has brought this application for judicial review of the Umpire's decision. While she asserts many grounds, the essential issues she raises are the following: the Umpire failed to consider the constitutional issue and had a duty to do so, thus refusing to exercise his jurisdiction; and in doing so he committed various errors of law. Before us it was essentially the position of the Attorney General that: the Umpire did not refuse to exercise his jurisdiction but in fact disposed of the constitutional argument; but if he did not dispose of it, this Court should decide the matter and not refer the issue back to the Umpire because an Umpire could not give an effective remedy even if he were to hold in favour of the applicant; and, this Court in disposing of the constitutional question should find the relevant provisions of the Unemployment Insurance Act to be valid and not inconsistent with the Charter. (No notice of a constitutional question had been served in respect of the hearing in this Court).
[7] At the outset of the hearing of the application, the Court took the position that it could not deal with the constitutional issue at that time because no notice had been given to the Attorneys General and, even if it had, the time allocated for the hearing of the application would not permit adequate consideration of the constitutional issues. It was our view that we should proceed to deal with the question of whether the Umpire had already dealt with the constitutional issue and if not, whether the matter should be referred back to an Umpire. The applicant and counsel for the Attorney General agreed that we should proceed on this basis.
[8] It should be noted that the parties may not have identified in the same manner the relevant Charter issues. The applicant is not represented by counsel. What appears to me to be the most cogent statement of her position on the Charter issue is found in the affidavit of her husband filed in support of her application, paragraph 9 of which reads as follows:
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9. Parents who qualified for Unemployment Insurance after the enforcement date for Bill C-21 could obtain parental benefit for a child born up to a year before. However, those individuals receiving an Unemployment Insurance Act benefit just prior to the enforcement of Bill C-21 could only claim if their child was born after the enforcement date. Thus, all women who were pregnant and received pregnancy benefit just before the enforcement of Bill C-21 were denied parental benefit. Of course, most natural fathers and adoptive parents did not collect an Unemployment Insurance Act benefit in respect of the same child born up to a year before the enforcement date of Bill C-21. The applicants submit this is discrimination due to pregnancy, which is the same as discrimination due to sex according to the Chief Justice in Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. at page 1221 and according to the Canadian Human Rights Act R.S.C. 1985, c. H-6, s. 3(2). Discrimination due to sex is prohibited under section 15 of the Charter. |
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Unfortunately this is not accompanied by precise references to passages in the statute so that one cannot readily tell whether the constitutional defects alleged consist of provisions being too narrow or too broad. It may well be that the provision complained of by the applicant is the same provision as that relied on by the Attorney General.
[9] As I understand it, the position of the Attorney General of Canada, as confirmed through the questioning of counsel by the Court, is that the statutory disposition which prevents the applicant from obtaining benefits is paragraph 56(5)(b) of the transitional legislation, quoted above. The key provision is that which prevents benefits from being paid where the child was born prior to November 18, the date of the coming into force of the new legislation. Basically, the Attorney General's position is that a coming into force provision which introduces benefits not previously available is not precluded by the Charter.
[10] The issues will require clarification, particularly on the part of the applicant, if this matter is referred back to an Umpire for consideration of a constitutional question.
Analysis
Should the Umpire have determined the constitutional issue?
[11] I am satisfied that the Umpire failed to deal with the constitutional issue. With respect, I believe that his reliance on the decision of this Court in Faltermeier4 as a justification for not addressing the constitutional issues raised before him was misplaced. As I understand Faltermeier, it was not a pronouncement that constitutional issues should not be addressed by Umpires but only by courts of appeal. Rather, it was a finding that section 14 of the Unemployment Insurance Act did not violate section 15 of the Charter. In the passage relied on by the learned Umpire, this Court was simply asserting that it was not a violation of section 15 of the Charter that the Unemployment Insurance Act addresses problems of the unemployed who are available for work but does not always address the problems of the unemployed who are not available for work, and the Court was insisting that it should not be called upon to extend a piece of social legislation designed for one purpose to achieve other arguably desirable social goals. In the present case, Parliament by several successive measures has shown an intention to extend benefits to those unable to work because of child-care obligations. The constitutional issue allegedly arises out of the selective method of introducing or applying such benefits.
[12] It has been clear, at least since the pronouncement of the Supreme Court of Canada in the Tétrault-Gadoury case5 that an Umpire has the power to determine constitutional issues as part of his duty to determine questions of law. This would not preclude the Court of Appeal from proceeding now to determine such issues, where the Umpire has failed to do so and where we are asked to make the decision he should have made. But in my view it is preferable that the matter be referred back to the Umpire. The advantages of having a hearing of constitutional issues concerning unemployment insurance heard before an Umpire, at least at first instance, was made clear in Tétrault-Gadoury. Subject to the problem of remedies available before the Umpire, to be discussed next, it would therefore be best to refer the matter back for a new hearing by an Umpire of the appeal including the constitutional issues.
Are appropriate remedies available before Umpires?
[13] Counsel for the Attorney General contends, however, that such a referral would be wrong because, should the applicant succeed on any of her Charter arguments, the Umpire could give no effective remedy. While, if he were to dismiss the applicant's arguments, he could readily confirm the decision of the Commission and the Board of Referees refusing her claim, if he were to find in her favour on the Charter issues he could not override the clear provisions of the Unemployment Insurance Act and order that benefits be paid to her. Counsel for the respondent views the applicant's Charter attack as being an assertion that the Unemployment Insurance Act is "under-inclusive" in respect of persons in her situation. Therefore, in the view of counsel, for the Umpire to give any remedy he would have to "read in" a provision covering her situation, a remedy in the nature of a declaration which an Umpire is not authorized by the Unemployment Insurance Act to give.
[14] I agree that an Umpire, sitting as such, cannot issue declarations of invalidity. Such remedies are reserved to superior courts and, although most if not all Umpires are present or past superior court judges, they are not sitting as such when acting as Umpires.
[15] The jurisdiction of Umpires under section 80 of the Unemployment Insurance Act is to hear "appeals" from Boards of Referees and the grounds upon which those appeals may be taken are specified as follows:
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80. An appeal lies as of right to an umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that |
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(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; |
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(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or |
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(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. |
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It will be noted that these are essentially grounds of judicial review very similar to the grounds upon which this Court exercises judicial review over umpires and other bodies pursuant to subsection 18.1(4) of the Federal Court Act. After a determination as to whether such grounds exist, the Umpire by section 81 of the Unemployment Insurance Act is authorized to
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dismiss the appeal, give the decision that the board or referees should have given, refer the matter back to the board of referees for re-hearing or re-determination in accordance with such directions as he considers appropriate or confirm, rescind or vary the decision of the board of referees in whole or in part. |
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The net result of this is that an Umpire can, inter alia, determine whether the Board of Referees erred in law in confirming or reversing the determination of the Commission to grant or withhold benefits. As noted above, this can include a determination of whether the decision of the Board in applying the Act as written was correct in constitutional law. Consequently the possible remedy in favour of the applicant relevant for these purposes would be a determination by the Umpire that the Board relied on an unconstitutional law in upholding a refusal of benefits by the Commission which had been based on the clear language of the statute, and the rendering by him of the decision the Board should have made to be consistent with constitutional law. I therefore conclude that there is no problem as to the availability of a remedy should the applicant succeed before the Umpire on the merits.
Constitutional Application of the Act
[16] In reaching such a conclusion that benefits should be payable to this claimant, the Umpire would be making a determination as to how the Act must be applied to be consistent with the constitution. It is really his power to make this determination which the Attorney General challenges. Nevertheless I believe an Umpire, like any other decision-maker on questions of law, has such a power.
[17] In reaching this conclusion I note that the Supreme Court has confirmed in at least three cases, Douglas/Kwantlen Faculty Assn. v. Douglas College,6 Cuddy Chicks Ltd. v. Ontario Labour Relations Board,7 and A.G. of Canada v. Tétrault-Gadoury8 that administrative tribunals required to decide legal issues can decide constitutional issues. Tétrault-Gadoury involved, of course, an Umpire and assumed that umpires are properly characterized as administrative tribunals.9 It will be noted that in each of these cases the provision in issue excluded certain persons from some kind of benefit or advantage (not unlike paragraph 56(5)(b) of the amending Act here which the Attorney General says excludes the applicant from benefits). In each case, the issue was characterized by the Supreme Court as involving the application of subsection 52(1) of the Constitution Act, 1982 and in each case it was held that the tribunal had a right and duty to apply that subsection.
[18] The present case, as I understand it, is also one involving subsection 52(1), and not subsection 24(1), of the Constitution Act, 1982. As explained by the Supreme Court in Schachter v. Canada,10 a case involving a complaint that the Unemployment Insurance Act was under-inclusive, subsection 52(1) is the appropriate basis for action where the clear words of the statute create a result which is attacked as unconstitutional, whereas subsection 24(1) is a basis for remedial action where an admittedly valid statute is being applied in a way to produce an unconstitutional result. I understand the complaint of the appellant here to be of the former type.
[19] I wish to emphasize that it remains for the parties to define more clearly the constitutional issues which the Umpire must address. It also remains for the Umpire to determine precisely what those issues are and if necessary to consider what are the appropriate techniques to apply the Act in a constitutional manner. Suffice it to say that on the basis of the case as presented to us it would appear that among the determinations which the Umpire could make would be those referred to in Schachter as "severance" (or "reading down", the treatment of a particular section as being invalid and a nullity) and "reading in" (applying the statute as if it contained a provision which would be constitutionally required to make the Act valid). In other words the Umpire could make a finding of the appellant's entitlement to benefits by applying the Act in a constitutional manner through severance or reading in, applying the criteria for these remedies as set out in Schachter. Another option recently endorsed by this Court11 is that of the constitutional "exemption", whereby a court accepts the general validity of a law but exempts a certain person, group, or situation, from its application because such application would be, in the particular circumstances, contrary to the constitution. This could result in a particular statutory limitation of benefits being ignored only with respect to this particular claimant.
[20] The foregoing must not be taken to imply that unconstitutionality has been established or that a particular technique should be used in the application of the Act. It is simply an indication that in my view an umpire has the same duties and powers as a court to make findings of invalidity relevant to subsection 52(1) of the Constitution Act, 1982 and, where invalidity is found, to define the constitutional way of applying the Act. All of this must be done within the limited remedies available to an umpire of, essentially, deciding that benefits should or should not have been provided.
[21] I also reiterate the need for notices to the Attorneys General of the constitutional question and a clear definition of the constitutional issues before the matter can be dealt with by an Umpire.
Disposition
[22] I would therefore allow the application, set aside the decision of the Umpire, and refer the matter back to the Chief Umpire for a new hearing and redetermination by another umpire in accordance with these reasons.
(s) "B.L. Strayer"
J.A.
"I agree: A.M. Linden J.A."
"I agree: F.J. McDonald J.A."
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1 S.C. 1990, c.40, s.14.
2 C.E.I.C. v. Tétrault-Gadoury [1991] 2 S.C.R. 22.
3 (1995) 128 D.L.R.(4th) 481.
4 Supra note 3.
5 Supra note 2 at 34-37.
6 [1990] 3 S.C.R. 570.
7 [1991] 2 S.C.R. 5.
8 Supra note 2. This Court had already made such a determination concerning Umpires in Zwarich v. A.G.C. [1987] 3 F.C. 253.
9 Whether this is an entirely apt characterisation of Umpires is debatable. They perform essentially judicial functions in hearing appeals under sections 80 and 81 of the Unemployment Insurance Act, and by section 77 of that Act they must be present or past judges of the Federal Court or of a provincial superior, county or district court. Nevertheless as the Supreme Court has accorded administrative tribunals the powers to decide constitutional issues, a fortiori Umpires must have that power.
10 [1992] 2 S.C.R. 679 at 719-20.
11 Corbiere et al v. Canada (1996) 206 N.R. 85.
STYLE OF CAUSE:DIANE NISHRI V. HER MAJESTY THE QUEEN
OF THE COURT STRAYER J.A.
Ms. Diane Nishri FOR APPLICANT
Ms. Cassandra Kirewskie FOR RESPONDENT
Ms. Diane Nishri
Mr. George Thomson
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