[1] Does the reduction of a pregnant woman's employment insurance benefits, by reason of a work stoppage caused by a preventive withdrawal pursuant to a provincial statute, violate her right to equality guaranteed by section 15 of the Canadian Charter of Rights and Freedoms (the Charter)?

[2] That, in its entirety, is the question that the applicant has put before us. She submits that subsection 12(2) of the Employment Insurance Regulations, SOR/96-322 (June 28, 1996) (the Regulations), as amended by SOR/97-31 (December 19, 1996), Canada Gazette Part II, Vol. 131, page 212, discriminates against her and therefore contravenes the Charter. That subsection, and subparagraph (ii) in particular, read:

12. (2) For the purposes of subsection 14(4) of the Act, a prescribed week is a week in which the claimant has no insurable earnings and is

(a) a week in respect of which a claimant has received or will receive

(i) workers' compensation payments, other than a lump sum or pension paid in full and final settlement of a claim made for workers' compensation payments,

(ii) under a wage-loss indemnity plan, any earnings by reason of illness, injury, quarantine, pregnancy or care of a child or children referred to in subsection 23(1) of the Act,

. . .

12. (2) Pour l'application du paragraphe 14(4) de la Loi, les semaines réglementaires sont les semaines suivantes pour lesquelles le prestataire n'a pas de rémunération assurable :

a) toute semaine pour laquelle le prestataire a reçu ou recevra :

(i) soit l'indemnité prévue pour un accident du travail ou une maladie professionnelle, autre qu'une somme forfaitaire ou une pension versées par suite du règlement définitif d'une réclamation,

(ii) soit une rémunération dans le cadre d'un régime d'assurance-salaire, en raison d'une maladie, d'une blessure, d'une mise en quarantaine, d'une grossesse ou des soins à donner à un ou plusieurs enfants visés au paragraphe 23(1) de la Loi,

[...]

(Emphasis added.)

[3] More specifically, the issue centres on the underlined words, which were added on December 19, 1996. The applicant claims that these words were added to her detriment because they had the effect of reducing the amount of benefits to which she would normally have been entitled.

[4] Subsection 12(2) was enacted in order to implement subsection 14(4) of the Employment Insurance Act, S.C. 1996, c. 23 (the Act). I reproduce the relevant part of subsection 14(4), underlining the words on which I will focus when I examine the parties' submissions as well as the Umpire's decision that is the subject of this application for judicial review:

14. (4) The rate calculation period is the period of not more than 26 consecutive weeks in the claimant's qualifying period ending with the later of

. . .

A prescribed week relating to employment in the labour force shall not be taken into account when determining what weeks are within the rate calculation period.

14. (4) La période de base d'un prestataire correspond à la période d'au plus vingt-six semaines consécutives, au cours de sa période de référence - compte non tenu des semaines reliées à un emploi sur le marché du travail, au sens prévu par règlement -, se terminant :

[...]

(Emphasis added.)

Relief sought by the applicant

[5] The applicant asks this Court to declare inoperative the words "in which the claimant has no insurable earnings" in subsection 12(2) of the Regulations. An increase in her rate of benefits would result.

[6] A brief statement of the facts and circumstances that give rise to this section 15 Charter challenge is in order. I will also include a brief summary of the proceedings brought by the applicant, which have resulted in her application for judicial review.

Facts, circumstances and proceedings

[7] The applicant is a physiotherapist by training. During her qualifying period under section 8 of the Act, that is to say, the 52 weeks immediately before the beginning of her benefit period, she held two part-time jobs simultaneously. She worked at two hospitals: Ste-Justine and Catherine Booth.

[8] The applicant became pregnant and exercised her right to preventive withdrawal at Ste-Justine but could not be reassigned to suitable alternative duties. She went on preventive withdrawal from December 14, 2000, to June 30, 2001.

[9] However, the applicant continued to work at Catherine Booth during her preventive withdrawal from Ste-Justine. Her job at Catherine Booth - which I will characterize, for the purposes of these reasons, as secondary to her employment at Ste-Justine - ended on June 29, 2001, when she went on maternity leave. On June 30, 2001, the applicant's preventive withdrawal benefits ended.

[10] On July 5, 2001, the applicant filed a claim for benefits. A benefit period commencing July 1, 2001, was established for her.

[11] Now that the applicant's benefit period was established, her rate of benefits needed to be determined. In accordance with section 14 of the Act, the Canada Employment Insurance Commission (the Commission) took into account the applicant's insurable earnings during her rate calculation period. A claimant's rate calculation period consists of 26 consecutive weeks. In the applicant's case, this period commenced on December 31, 2000, and ended on June 30, 2001. It is only by happenstance that this period coincided with the duration of the applicant's second job, which she retained after preventively withdrawing from her first job.

[12] Since the applicant's insurable earnings during this period amounted to $15,505, her weekly rate of benefits was established at $328. This rate was lower than the maximum rate of $413, to which the applicant claimed, and continues to claim, to be entitled.

[13] This claim is based on the applicant's contention that the Commission, in determining the rate of benefits, should have excluded from the rate calculation period the weeks in respect of which she collected preventive withdrawal benefits, as though the words "in which the claimant has no insurable earnings" in subsection 12(2) of the Regulations did not exist. Since the applicant's rate of benefits would then have been calculated based on the period in which she was earning two incomes, she would have been entitled to the maximum weekly benefit rate.

[14] In a decision for which, to all intents and purposes, no reasons were given, the Board of Referees agreed with the applicant's submissions. That decision was overturned by the Umpire on appeal. Hence the application for judicial review before us.

The Umpire's decision

[15] The Umpire held that unless the applicant succeeded in challenging the constitutional validity of subsection 12(2) of the Regulations, the appeal turned on the principles articulated by this Court in Canada (Attorney General) v. Dupéré, 2001 FCA 83. In concrete terms, this meant that the Commission's appeal regarding the calculation of the benefit rate had to be allowed, and that the Board of Referees' decision had to be rescinded.

[16] The Umpire then analyzed the constitutional question: the right to equality set out in section 15 of the Charter. In his opinion, the case law developed in Canada (Attorney General) v. Lesiuk, 2003 FCA 3; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703; and Krock v. Canada (Attorney General), 2001 FCA 188, could not be ignored. At paragraph 139 of his decision (CUB 59588), he wrote:

The claimant has not shown that the impugned Regulations infringed her right to equality, stigmatized her by oversight or intentionally failed to recognize the temporary difficulties she encountered. There is no discrimination under subsection 15(1) of the Charter.

Consequently, the Umpire also dismissed the appeal in respect of the constitutional question.

Analysis of the Umpire's decision

[17] With respect, I agree with the Umpire that Lesiuk, Granovsky and Krock, supra, are at odds with the applicant's submissions. The Umpire has already analyzed those cases in detail, and I do not intend to repeat his analysis, though I feel it is important that some of his conclusions, with which I agree, be set out here.

[18] I agree with the Umpire that subsection 12(2) of the Regulations creates no inequality and draws no distinction based on the applicant's personal characteristics.

[19] In addition, it seems clear to me, as it was to the Umpire, that the fact that one is not receiving the maximum weekly benefits, particularly under the circumstances of this case, does not violate human freedom and dignity and does not promote the existence of a society in which human beings are not recognized as equal members of Canadian society. Violation of human dignity and freedom is one of factors that the Supreme Court has held to be decisive in establishing discrimination under section 15 of the Charter: see Law v.Canada (Minister of Employment and Immigration), [1999] 1 S.C.R.. 497, at paragraph 51. The circumstances that result in the applicant receiving 80% (79.24%) rather than 100% of the benefits are worthy of closer examination.

[20] The 20% difference does not result from the applicant's sex and pregnancy, for if a male worker under the same circumstances as the applicant exercised his right to preventive withdrawal for occupational health considerations, the amount of his benefits would be the same. The difference results primarily from the fact that the applicant held a second insurable job and continued to work at that job while receiving benefits from the Commission de la santé et de la sécurité au travail (CSST) in connection with her first job. And a claimant's weekly rate of benefits is based on his or her weekly insurable earnings, regardless of the claimant's sex, race, nationality, religion, colour, ethnic origin or age. The rate of these benefits and the method used to calculate them are the same for all claimants: 55% of weekly insurable earnings (see subsection 14(1) of the Act).

[21] In addition, the 20% difference affecting the applicant stems from the fact that her second insurable employment paid less than the one from which she withdrew, and therefore did not pay well enough for her to achieve the maximum weekly rate of benefits. The applicant acknowledges that this difference would not have existed if the insurable earnings from her second job had been higher.

[22] Thus, we are faced with very special and very particular circumstances that are the same for any worker who meets the following conditions. In order for subsection 14(4) of the Act and subsection 12(2) of the Regulations to result in the establishment of a benefit rate that is lower than the maximum to which the worker might be entitled were it not for subsection 12(2) of the Regulations:

(a) the worker must have two jobs;

(b) the worker must leave one of those jobs because of a workplace accident, illness, preventive withdrawal due to a risk to health or pregnancy, etc., and must collect wage-loss indemnity or other benefits in connection with that job;

(d) the second job alone must not provide sufficient insurable earnings for the worker to achieve the maximum benefit rate; and

(e) the claimant must have worked at the second job for 26 consecutive weeks in the qualifying period, so that it is impossible to go farther back in time and use better-paid weeks from the first job to calculate the rate of benefits.

For if the claimant works at the second job for a short time, or fewer than 26 weeks, then, in determining the benefit rate, weeks of insurable earnings from the first job can be combined with weeks from the second, to a maximum of 26 consecutive weeks.

[23] Thus, in situations such as that of the applicant, who had two jobs, a claimant's weekly benefit rate can differ based on the variables mentioned above, including the duration of the second job and the amount of insurable earnings from that job and from the first job. In some cases, there may be no difference between the maximum weekly benefit rate and the weekly benefit rate established for the claimant. However, in cases where these variables do make a difference, it may fluctuate between a few dollars and $85, as in the applicant's case.

[24] With respect, I do not believe that one can conclude, based on this applicant's particular and special circumstances, that "the impugned law or provision perpetuates the view that certain persons are less capable or less worthy of recognition or value as human beings or as members of Canadian society": see Canada (Attorney General) v. Lesiuk, supra, at paragraph 40, citing Law, supra, at paragraph 99, and Lavoie v. Canada, [2002] 1 S.C.R. 769, at paragraph 42.

[25] In fact, the applicant seeks to have part of a regulatory provision struck down because the legislator supposedly failed to include in the constellation of employment insurance a stellar alignment that fits her situation. But what was the legislator doing, then, when it enacted subsection 14(4) of the Act and subsection 12(2) of the Regulations?

[26] The legislator was pursuing two objectives. First, it wanted to provide, and did provide, some protection to workers who might otherwise be penalized when forced to withdraw from work because they would have to rely on earnings from wage-loss indemnity plans, which are generally lower than insurable earnings. I use the word "generally" because certain public-sector collective agreements provide that the employer covers the shortfall between the employee's weekly pay and the employee's earnings under the wage-loss indemnity plan. I will come back to the nature and scope of this protection in greater detail later.

[27] The legislator's second objective was to ensure that this protection was introduced without compromising the integrity of the contributory employment insurance system. Insurable earnings, which are used as the basis for calculating benefit rates, constitute one of the foundations of this integrity. That same foundation is laid out in subsection 14(4) of the Act and subsection 12(2) of the Regulations.

[28] Subsection 14(4) of the Act results from an amendment to the previous Act. The amendment is for workers in all industries who have gaps in their work and earning patterns. It seeks to replace the fixed period for calculating benefits with a more flexible period that allows workers to maximize their benefits. By excluding certain weeks of work stoppage from the average earnings that come within the rate calculation period, workers avoid having their benefits reduced. The resulting additional cost to the system was estimated at $246 million in 1996: see the statement by Robert D. Nault, Parliamentary Secretary to the Minister of Human Resources Development, in House of Commons Debates, Vol. 134, May 2, 1996, at page 2220. Thus, without a doubt, this is, in essence, a beneficial measure for workers: by excluding certain weeks of work stoppage, one can go back farther in time and find, within the 52-week qualifying period, as many as 26 consecutive weeks of insurable earnings instead of weeks of work stoppage.

[29] The tortuous, ambiguously-worded French version of subsection 14(4) of the Act excludes from a claimant's rate calculation period, within the meaning of the Regulations, "les semaines reliées à un emploi sur le marché du travail" (weeks relating to employment in the labour force). Subsection 12(2) of the Regulations completes the Act and identifies the weeks that can be disregarded in the computation of the 26 weeks that come within the rate calculation period.

[30] I would note parenthetically that the concept of "semaines réglementaires" makes its initial appearance in the French version of subsection 12(2) of the Regulations with confusing results. The concept, rendered in English as "prescribed weeks", is not found in the French version of subsection 14(4) of the Act. The English wording is far clearer and more logical in that the concept of "prescribed weeks" is used in both subsection 14(4) of the Act and subsection 12(2) of the Regulations. Moreover, the English version of subsection 14(4) of the Act stipulates much more clearly than the French that those weeks are not to be taken into account.

[31] In sum, the combined effect of subsection 14(4) of the Act and subsection 12(2) of the Regulations is to relax the method for calculating benefit rates in a way that favours claimants. It does this by excluding from that calculation the weeks for which a worker received earnings from a wage-loss indemnity plan on account of pregnancy, provided that the worker did not receive insurable earnings from another job in those weeks. In other words, the two provisions protect and benefit those persons, whose needs are greater, and who were unable to hold insurable employment for the reasons set out in those provisions.

[32] In Thibaudeau v. M.N.R., [1994] 2 F.C. 189 (F.C.A.), at pages 229-30, I mentioned the idea that a legislative measure that corrects a disadvantage suffered by a group - in this case, workers unable to continue in insurable employment under the circumstances set out in subsection 14(4) of the Act and subsection 12(2) of the Regulations - need not be perfect in order to meet the requirements of section 15 of the Charter. At page 230, I wrote:

Section 15 of the Charter does not require that a remedy or mitigation of an earlier prejudice be 100% effective, flawless and without secondary effects if it is to be constitutionally valid. To impose such an obligation in terms of the result would have a paralysing effect on any initiative contemplated or taken to correct the prejudicial effects of a policy in the past.

[33] This question was also considered in Law, supra, where Iacobucci J. wrote as follows on behalf of the Court at paragraph 72:

An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation.

[34] In Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, the majority of the Supreme Court cited Iacobucci J.'s conclusion. The issue in Gosselin was the constitutional validity of a regulation providing for reduced welfare benefits for individuals under 30 not participating in training or work experience employment programs. At paragraph 55, McLachlin C.J. wrote:

. . . Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required to find that a challenged provision does not violate the Canadian Charter. The situation of those who, for whatever reason, may have been incapable of participating in the programs attracts sympathy. Yet the inability of a given social program to meet the needs of each and every individual does not permit us to conclude that the program failed to correspond to the actual needs and circumstances of the affected group. As Iacobucci J. noted in Law, supra, at para. 105, we should not demand "that legislation must always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter". Crafting a social assistance plan to meet the needs of young adults is a complex problem, for which there is no perfect solution. No matter what measures the government adopts, there will always be some individuals for whom a different set of measures might have been preferable. The fact that some people may fall through a program's cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected, or that distinctions contained in the law amount to discrimination in the substantive sense intended by s. 15(1).

[35] As we have seen, the benefit conferred by subsection 14(4) of the Act and subsection 12(2) of the Regulations is not restricted merely to persons who are unable to continue in insurable employment because of pregnancy. However, it does come on top of other similar measures that were adopted to benefit such persons: the opportunity for a person on preventive withdrawal to extend her qualifying period (paragraph 8(2)(a) of the Act); more favourable requirements for establishing benefit periods (sections 6, 7(4.1), 8, 10 and 153.1 of the Act and section 14 of the Regulations); less restrictive eligibility requirements than those applied to other claimants (sections 22, 34 and 36 of the Act); and payment of benefits to claimants outside Canada (section 55 of the Regulations).

[36] With respect, for the reasons set out above, I cannot conclude that subsection 12(2) of the Regulations is discriminatory within the meaning of section 15 of the Charter and cannot allow the applicant's application to have the words "in which the claimant has no insurable earnings" declared inoperative.

[37] However much sympathy the applicant's claim may elicit, I am required to consider it in light of the Act, the Charter and the case law that governs their application and interpretation. Consequently, I would dismiss the application for judicial review with costs.

"Gilles Létourneau"

J.A.

"I concur.

Robert Décary J.A."

"I concur.

J.D. Denis Pelletier J.A."

Certified true translation

Peter Douglas

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET: A-118-04

STYLE OF CAUSE: MARIANE MANOLI v. CANADA EMPLOYMENT INSURANCE COMMISSION

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: May 3, 2005

REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.

CONCURRED IN BY: DÉCARY J.A.

PELLETIER J.A.

DATED: May 13, 2005

APPEARANCES:

Dominique-Anne Roy

Michel Gilbert

FOR THE APPLICANT

Pauline Leroux

Carole Bureau

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Grondin Poudrier Bernier

Québec, Quebec

FOR THE APPLICANT

Morris Rosenberg

Montréal, Quebec

FOR THE RESPONDENT

Date: 20050513

Docket: A-118-04

Ottawa, Ontario, May 13, 2005

CORAM: DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

MARIANE MANOLI

Applicant

and

CANADA EMPLOYMENT INSURANCE COMMISSION

Respondent

JUDGMENT

The application for judicial review is dismissed with costs.

"Robert Décary"

J.A.

Certified true translation

Peter Douglas

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Manoli v. Canada (Employment Insurance Commission), 2005 FCA 178

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2005 FCA 178