A-368-95
CORAM: STRAYER, J.A.
DÉCARY,
J.A.
McDONALD,
J.A.
IN THE
MATTER OF THE UNEMPLOYMENT
INSURANCE
ACT, RSC 1985, C. U-1, AS AMENDED
AND IN THE
MATTER OF THE DECISION OF THE
HONOURABLE
R.J. MARIN, UMPIRE, DATED
FEBRUARY
6, 1995 AND RECEIVED BY THE
APPLICANT ON
MAY 15, 1995 SETTING ASIDE THE
DECISION OF
THE BOARD OF REFEREES DATED
AUGUST
5, 1992
B E T W E E N :
SUSAN
HEMPEL
Applicant
-
and -
THE
ATTORNEY GENERAL OF CANADA AND
CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION
Respondents
Judgment
rendered at Calgary, Wednesday, May 15, 1996.
HEARD AT CALGARY, ALBERTA ON
WEDNESDAY, MAY 15, 1996.
REASONS FOR JUDGMENT
OF THE COURT BY: McDONALD,
J.A.
A-368-95
CORAM: STRAYER, J.A.
DÉCARY,
J.A.
McDONALD,
J.A.
IN THE
MATTER OF THE UNEMPLOYMENT
INSURANCE
ACT, RSC 1985, C. U-1, AS AMENDED
AND IN THE
MATTER OF THE DECISION OF THE
HONOURABLE
R.J. MARIN, UMPIRE, DATED
FEBRUARY
6, 1995 AND RECEIVED BY THE
APPLICANT ON
MAY 15, 1995 SETTING ASIDE THE
DECISION OF
THE BOARD OF REFEREES DATED
AUGUST
5, 1992
B E T W E E N :
SUSAN
HEMPEL
Applicant
-
and -
THE
ATTORNEY GENERAL OF CANADA AND
CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION
Respondents
R
E A S O N S F O R J U D G M E N T
(Delivered
from the Bench at Calgary (Alberta)
on
Wednesday, May 15, 1996
McDonald J.A.
The applicant on this Judicial Review
Susan Hempel has been a teacher in Lacombe County, Alberta since September
1987. On November 9, 1991 she went on maternity leave. She gave birth to her
son Jacob on December 18, 1991. She applied for Unemployment Insurance
Benefits on December 18, 1991. She applied
for Unemployment Insurance Benefits on December
21 1991 and began receiving them on December 29, 1991. On January 30, 1992
when he was just 6 weeks old Jacob suffered cardiac arrest and ultimately he
passed away on January 31, 1992.
Ms. Hempel suffered severe depression
on the death of her son. In the opinion of her doctor she was suffering from a
"severe mental disability".
On April 18, 1992 her maternity
benefits ceased. She applied for sickness benefits which she began receiving
on April 19, 1992. On June 30, 1992 Ms. Hempel was informed that pursuant to
Regulation 46.1 of the Unemployment Insurance Regulations she would not
be entitled to receive benefits during the "non teaching period"
being the summer months.
There were two issues before the
Umpire one being the statutory condition of 46.1. The other being the
allegation of discrimination under sec. 15 of the Charter. The Umpire found
against the applicant on both grounds and the sole issue before us related to
Charter Argument.
Ms. Hempel appealed her
disentitlement to the Board of Referees who allowed her appeal. The Commission's
appeal from that decision was successful.
He found that the characterization of
the disqualified group was inappropriate. Regulation 46.1 does not exclude
disabled teachers from collecting benefits during the non-teaching period.
Rather it excludes all teachers who are not eligible for maternity, parental,
or adoption benefits. The distinction is between teachers who are on
pregnancy, parental, or adoption leave and all other teachers. This does not
therefore constitute a discriminatory distinction based on
a personal characteristic. In addition the
Umpire found that disqualified teachers do not constitute an analogous ground
to those listed in sec. 15.
The Umpire concluded that Regulation
46.1 does not violate the Charter and allowed the Commission's appeal.
While we have great sympathy for the
trauma suffered by Ms. Hempel we are not persuaded that the Umpire committed
any reviewable error.
We are in substantial agreement with
the reasons of the Umpire to the effect that Regulation 46.1 does not violate
Ms. Hempel's right to equality guaranteed by sec. 15 of the Charter. We
believe that this Court's decision in Attorney General of Canada v. Taylor
is directly applicable. The fact that Ms. Hempel was mentally disabled does
not single her out from receipt of benefits during the non-teaching period.
Persons receiving sickness benefits
because of any physical condition other than pregnancy do not receive benefits
over the summer period either. The applicant is not being denied a benefit or
suffering any discriminatory burden simply because she was mentally ill for a
period of time.
In regard to the non-charter evidence
admitted, the Umpire allowed it in but clearly states that he gave it no
weight. As such this does not constitute grounds for overturning the decision.
Accordingly the application for
Judicial Review is dismissed
"F. J. McDonald"
J.A..
A-368-95
CORAM: STRAYER, J.A.
DÉCARY, J.A.
McDONALD, J.A.
IN THE MATTER OF THE UNEMPLOYMENT
INSURANCE ACT, RSC 1985, C.
U-1, AS
AMENDED
AND IN THE MATTER OF THE DECISION
OF THE HONOURABLE R.J. MARIN, UMPIRE,
DATED FEBRUARY 6, 1995 AND RECEIVED BY
THE APPLICANT ON MAY 15, 1995 SETTING
ASIDE THE DECISION OF THE BOARD OF
REFEREES DATED AUGUST 5, 1992
B E T W E E N :
SUSAN HEMPEL
Applicant
- and
-
THE ATTORNEY GENERAL OF CANADA AND
CANADA EMPLOYMENT AND IMMIGRATION
COMMISSION
Respondents
R E A S O N S F O R J U D G M E N
T
FEDERAL
COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS
OF RECORD
COURT FILE NO.: A-368-95
STYLE OF CAUSE: SUSAN
HEMPEL v. THE ATTORNEY GENERAL
OF CANADA
AND CANADA
EMPLOYMENT
AND IMMIGRATION
COMMISSION
PLACE OF HEARING: CALGARY,
Alberta
DATE OF HEARING: May
15, 1996
REASONS FOR JUDGMENT
OF THE COURT BY: McDONALD,
J.A
DATED: May
15, 1996
APPEARANCES:
Mr. F. Molnar for
the Applicant
Mr. M. Curley for
the Respondents
SOLICITORS OF RECORD:
Field & Field Perraton
Calgary, Alberta for
the Applicant
Mr. George Thomson for
the Respondents
Deputy Attorney General
for Canada
Ottawa, Ontario
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