Date: 20100603
Docket: A-322-09
Citation: 2010 FCA 148
CORAM: LÉTOURNEAU J.A.
PELLETIER J.A.
STRATAS J.A.
BETWEEN:
SHARYL
L. BROWN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Vancouver,
British Columbia, on June 1,
2010.
Judgment delivered
at Vancouver, British Columbia, on June 3, 2010.
REASONS FOR JUDGMENT BY:
PELLETIER J.A.
CONCURRED IN BY:
LÉTOURNEAU J.A.
STRATAS J.A.
Date:
20100603
Docket:
A-322-09
Citation: 2010 FCA 148
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
STRATAS J.A.
BETWEEN:
SHARYL L.
BROWN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
PELLETIER
J.A.
[1]
Ms.
Sharyl Brown was diagnosed with a serious disease and was unable to work while
she received treatment for her illness. She applied for employment insurance
benefits and received sickness benefits for 15 weeks, the maximum period
allowed by paragraph 12(3)(c) of the Employment Insurance Act
S.C. 1996 c. 23 (“the Act”). She was found to be disentitled to regular
benefits because she was not capable of and available for employment during her
illness and period of treatment: see paragraph 18(b) of the Act. Ms.
Brown appealed this disentitlement to the Board of Referees without success and
then to the Umpire, again without success. She now seeks judicial review of
the Umpire’s decision by this Court.
[2]
Ms.
Brown does not challenge the Commission’s application of the Act to her
circumstances. Rather, she challenges the basic fairness of the law itself.
In her view, the limitation of sickness benefits to 15 weeks is unfair because sickness
arises from circumstances beyond a claimant’s control and while other claimants
who are unemployed due to circumstances beyond their control are entitled to
benefits for 52 weeks, a claimant who is sick is only entitled to receive
benefits for a period of 15 weeks. Had Ms. Brown had the benefit of legal
representation, she would have characterized her complaint as a constitutional
challenge to the validity of s. 12(3)(c) on the basis that it is
discriminatory contrary to section 15 of the Canadian Charter of Rights and
Freedoms.
[3]
There
is no issue that the Act was properly applied to Ms. Brown and that her application
must fail unless she is able to successfully challenge the constitutional
validity of paragraph 12(3)(c) of the Act. The issue in this application for
judicial review is whether she can do so.
[4]
Before
dealing with the merits, there are two preliminary matters to be dealt with.
The first is the style of cause. Ms. Brown named Canada (Minister of
Human Resources and Skills Development) as the respondent in her application
for judicial review. The Attorney General of Canada appeared in response to
the Notice of Application and seeks to have the style of cause amended to
substitute the Attorney General of Canada for the Minister of Human Resources
and Skill Development as the proper respondent. That request is consistent
with the law and with the practice in the Federal Courts and will be allowed. Ms.
Brown did not object to the change. The style of cause will be amended
accordingly.
[5]
The
second preliminary matter deals with the notice of constitutional question
filed by Ms. Brown, as required by section 57 of the Federal Courts Act
R.S.C. 1985 c. F-7. The Attorney General challenges Ms. Brown’s notice of
constitutional question on the ground that it does not specify the time and
place of hearing so that the various Attorneys General would not be in a position
to appear in response to the application for judicial review should they wish
to do so. For the reasons which follow, I am of the view that this argument,
while technically correct, makes no difference to the outcome of the appeal.
[6]
There
is a longstanding principle that constitutional questions should not be decided
except upon a full factual record. The rationale for this position was clearly
articulated by Cory J. in MacKay v. Manitoba, [1989] 2 S.C.R. 357 as
follows:
8 Charter cases will frequently
be concerned with concepts and principles that are of fundamental importance to
Canadian society. … In light of the importance and the impact that these
decisions may have in the future, the courts have every right to expect and
indeed to insist upon the careful preparation and presentation of a factual
basis in most Charter cases. The relevant facts put forward may cover a wide
spectrum dealing with scientific, social, economic and political aspects. Often
expert opinion as to the future impact of the impugned legislation and the
result of the possible decisions pertaining to it may be of great assistance to
the courts.
9 Charter decisions should not
and must not be made in a factual vacuum. To attempt to do so would trivialize
the Charter and inevitably result in ill-considered opinions. The presentation
of facts is not, as stated by the respondent, a mere technicality; rather, it
is essential to a proper consideration of Charter issues.
[7]
In
this case, Ms. Brown did not appear at the hearing of the Board of Referees nor
at the hearing before the Umpire. As a result, the only record before each
tribunal was the documentary record compiled by the Commission together with
certain written representations submitted by Ms. Brown. Those submissions raise
obliquely the question of discrimination and constitutional validity but they
do not establish any factual foundation which would permit a tribunal to
properly adjudicate a constitutional challenge to the validity of the
limitation on sickness benefits found at paragraph 12(3)(c) of the Act.
Not surprisingly, given her lack of legal training, Ms. Brown has failed to
provide a factual basis for her argument. One consequence of her failure to do
so is that the Attorney General has been deprived of the opportunity to tender
evidence on the question of whether, assuming a breach of section 15, the
latter can be justified under section 1 of the Charter.
[8]
For
those reasons, this Court is not in a position to proceed with Ms. Brown’s
challenge to the constitutional validity of paragraph 12(3)(c). While
it is true that her notice of constitutional question may be technically
deficient, the real issue is that she has not put before the Court a factual
record upon which a determination of constitutional validity could
appropriately be made.
[9]
For
those reasons, I would dismiss the application for judicial review without
costs.
"J.D.
Denis Pelletier"
“I agree
Gilles Létourneau J.A.”
“I
agree
David
Stratas J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-322-09
STYLE OF CAUSE: SHARYL
L. BROWN v. ATTORNEY
GENERAL
OF CANADA
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 1, 2010
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
STRATAS J.A.
DATED: June 3, 2010
APPEARANCES:
|
Sharyl L. Brown
|
ON
HER OWN BEHALF
|
|
François Choquette
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
|
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
Email this Content