Perigny v. Canada (Attorney General), 2003 FCA 94

Date: 20030221

Docket: A-405-01

Ottawa, Ontario, February 21, 2003

CORAM:        DÉCARY J.A.

NOËL J.A.

PELLETIER J.A.

BETWEEN:

                                                                     LYNE PÉRIGNY

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                                        JUDGMENT

The application for judicial review is dismissed without costs.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

Date: 20030221

Docket: A-405-01

Neutral citation: 2003 FCA 94

CORAM:        DÉCARY J.A.

NOËL J.A.

PELLETIER J.A.

BETWEEN:

                                                                     LYNE PÉRIGNY

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                     Hearing held at Montréal, Quebec, on January 14, 2003.

                                 Judgment rendered at Ottawa, Ontario, on February 21, 2003.

REASONS FOR JUDGMENT:                                                                                           DÉCARY J.A.

CONCURRED IN BY:                                                                                                               NOËL J.A.

                                                                                                                                           PELLETIER J.A.

Date: 20030221

Docket: A-405-01

Neutral citation: 2003 FCA 94

CORAM:        DÉCARY J.A.

NOËL J.A.

PELLETIER J.A.

BETWEEN:

                                                                     LYNE PÉRIGNY

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

DÉCARY J.A.

[1]         The applicant maintained that the provisions on eligibility for unemployment insurance benefits of a "new entrant or a re-entrant to the labour force" within the meaning of s. 6(3) and (4) of the Unemployment Insurance Act ("the disputed measure") are unconstitutional in that they discriminate against women who have left the labour market to attend to their family obligations. These provisions are commonly known as the "DEREMPA" rule. However, the applicant is not seeking an absolute ruling of invalidity: rather, she is asking that the disputed measure not be applied to her and that a benefit period be established for her as if the measure did not exist.

[2]         The applicant's argument was dismissed by the umpire (CUB 51415) essentially on the ground that the applicant had not discharged the burden of proof on a party relying on the equality right conferred by s. 15 of the Canadian Charter of Rights and Freedoms. It had been agreed that if the umpire were to conclude that the equality right had been infringed, the debate on justification allowed by s. 1 of the Charter would take place later.

Legal background

[3]         Under s. 6 of the Unemployment Insurance Act _ which since 1996 is no longer in effect _ and s. 51.1 of the Unemployment Insurance Regulations, a distinction is made between insured persons who enter the labour market or return to it and insured persons who are already in it.

[4]         The Act accordingly requires entrants or re-entrants to the labour force to have a different and greater number of weeks of insurable employment in their qualifying period for a benefit period to be established. An insured person who is in the labour force will have to prove that during his or her qualifying period the person held insurable employment for between 12 and 20 weeks, depending on the regional unemployment rate applicable to the person. An insured person who is a new entrant or a re-entrant to the labour force, on the other hand, must prove that he or she has held insurable employment for 20 weeks during the qualifying period. However, the latter category excludes insured persons who in the period of 52 weeks that immediately precedes the commencement of the qualifying period have at least 14 weeks insurable employment, weeks during which benefits were paid or payable, prescribed weeks or any combination thereof.

[5]         The "prescribed" weeks which may be taken into account are defined in s. 51.1 of the Regulations. A prescribed week is, for example, a week in which a claimant has received or will receive earnings under a wage-loss indemnity plan by reason of pregnancy or care of a child or children, referred to in s. 20(1) of the Act.

[6]         It is worth setting out here the relevant provisions of the Unemployment Insurance Act and Regulations and of the Charter.

[7]         Before the hearing the Court informed counsel of the very recent appearance, on January 8, 2003, of the Federal Court of Appeal judgment in A.G. Canada v. Lesiuk, 2003 FCA 3 ("Lesiuk"). In that case this Court held that ss. 6(1) and 7(2) of the Employment Insurance Act, S.C. 1996, c. 23, as amended, did not adversely affect the equality right of "women in a parental status" within the meaning of s. 15(1) of the Charter, and that in any case if there had been any adverse effect it was justified within the meaning of s. 1 of the said Charter.

[8]         In Lesiuk the debate concerned the eligibility of a claimant who was not a new entrant or re-entrant to the labour force. The subsection at issue in Lesiuk, s. 7(2) of the Employment Insurance Act, replaced s. 6(2) of the Unemployment Insurance Act, which is not at issue in the case at bar. The argument here concerns the eligibility of a person who is a new entrant or re-entrant to the labour force within the meaning of s. 6(3) and (4) of the Unemployment Insurance Act, which was replaced by s. 7(3) and (4) of the Employment Insurance Act, and which was not at issue in Lesiuk.

[9]         The difference may be significant since in either of those Acts a person who returns to the labour market (as in this case) is subject to requirements in addition to those which a person who has not left it (as in Lesiuk) must meet. It was not in dispute in the case at bar that, but for the disputed measure, the applicant had accumulated enough weeks (seventeen) at the end of her employment with Garderie Villeneuve to qualify under the general eligibility rule applicable in January 1992.

[10]       It follows that Lesiuk is not a basis for disposing of the case at bar, although the analytical model it suggests appreciably simplifies the Court's task and the general comments made by Létourneau J.A. on the employment insurance system and the effect of the Charter upon it apply equally to unemployment insurance.

Facts

[11]       In 1988 the applicant was employed by the Commission scolaire Pointe-Lévy in the Quebec area. On April 26, 1988, she went on maternity leave and received special benefits for maternity leave for fifteen weeks.

[12]       In May 1988, she left the Québec area and went to settle with her family in Montréal, where her spouse had been transferred.

[13]       On October 11, 1988, she decided to leave the labour market in order to look after her child for the first two years of its life, although she kept her employment connection with the Commission scolaire until June 30, 1991, the date her unpaid leave expired. During the period of her unpaid leave she did not contribute to the unemployment insurance plan.

[14]       In December 1990, she began looking for work in Montréal, and on January 28, 1991, she found employment with the Garderie Villneuve. She held that employment for seventeen weeks, until May 24, 1991, the date on which she was laid off.

[15]       In May 1991, when she was still on unpaid leave and protected by her collective agreement, she asked the Commission scolaire to transfer her rights to the Montréal area. She suggested a candidate for her position in Pointe-Lévy and offered to replace the latter in Montréal. The exchange proposal was not accepted.

[16]       On June 7, 1991, she filed an application for benefits and said she was available and looking for work as a pre-school teacher.

[17]       On July 18, 1991, the Employment Insurance Commission disallowed the benefit application on the ground that during her qualifying period Ms. Périgny had not accumulated the twenty weeks of insurable employment needed to be eligible. This requirement resulted from the fact that she was a "new entrant or a re-entrant to the labour force" pursuant to s. 6(3) and (4) of the Unemployment Insurance Act and s. 51.1 of the Unemployment Insurance Regulations.

[18]       The DEREMPA rule applied to Ms. Périgny because in the 52 weeks preceding the commencement of her qualifying period she did not have fourteen weeks of insurable employment, weeks in respect of which benefits were paid or payable to her, prescribed weeks that related to the employment in the labour force, or any combination thereof.

[19]       At that time Ms. Périgny did not challenge the Commission's negative decision.

[20]       During the summer of 1991, Ms. Périgny looked after her child and on August 27, 1991, she asked the Commission scolaire to pay her severance pay, and in case that was not available, to extend her full-time leave to June 30, 1992.

[21]       In January 1992, Ms. Périgny received the severance pay requested, effective July 1, 1991, for half her annual salary, namely $18,910.03. The employment relationship with the Commission scolaire then ended.

[22]       On January 7, 1992, as she wrongly believed that payment of this severance pay made her eligible for benefits, Ms. Périgny made another benefit application. This application was denied on February 5, 1992, because Ms. Périgny still only had seventeen of the twenty weeks of insurable employment required in her qualifying period.

[23]       Eventually, after many events which are not worth going into, the board of referees on November 26, 1999, and the umpire on May 28, 2001, dismissed her appeals.

Umpire's decision

[24]       After a lengthy explanation of the evidence presented by the parties the umpire relied primarily on Symes v. Canada, [1993] 4 S.C.R. 695, as a basis for the following rules of law: a statute may be discriminatory in its effect, regardless of its purpose or Parliament's intent; the protection of s. 15(1) of the Charter is provided to persons who are part of a separate and isolated minority; in determining whether there is discrimination because of reasons linked to personal characteristics of an individual or group of individuals, the Court must look at the social, political and legal background to see whether there is different treatment, and if so, whether the difference in treatment gives rise to inequality or creates a disadvantage.

[25]       He then analyzed the evidence and came to the conclusion that the statistical evidence presented by the applicant was inadequate.

Analysis

[26]       Counsel for the applicant objected that the umpire erred in law by not adopting the approach suggested by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 (Law), and in any case erred in law by imposing too heavy a burden of proof and erred in fact by drawing conclusions from the evidence which he could not draw.

[27]       It will be recalled that in para. 88 Law suggests a three-stage approach which takes the form of three questions the Court must answer. There will be discrimination within the meaning of s. 15(1) of the Charter if there is an affirmative answer to each answer. The first question: did the impugned measure impose differential treatment between the claimant and other persons, in purpose or effect, either by drawing a formal distinction on the basis of one or more personal characteristics, or by failing to take into account the claimant's already disadvantaged position within Canadian society? The second question: were one or more enumerated and analogous grounds of discrimination the basis for the differential treatment? The third question: did the differential treatment constitute discrimination by imposing a burden upon or withholding a benefit from the claimant in a manner which reflected the stereotypical application of presumed group or personal characteristics, or which otherwise had the effect of perpetuating or promoting the view that the applicant was less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration?

[28]       The first objection to the umpire was without basis. It appeared from what the Court was told at the hearing that the umpire was asked to adopt the approach taken by the Supreme Court in Symes since that case also, unlike Law, concerned a statute which was only discriminatory by its effects. What is more, the umpire did not have to go through the third stage of the analysis suggested by Law, since he came to the conclusion, by his own approach based on Symes, that the applicant had failed at what it will henceforth be convenient to call the first stage.

[29]       The objection was all the more unwarranted as counsel for the applicant in his memorandum himself failed to deal with the third stage in the manner indicated in Law, obliging the Court and counsel for the respondent to hear a completely rehashed and very tedious oral argument.

[30]       In any event, in Law at para. 88 Iacobucci J. was careful to state that "these guidelines should not be seen as a strict test, but rather should be understood as points of reference for a court" and that "it is inappropriate to attempt to confine analysis under s. 15(1) of the Charter to a fixed and limited formula".

[31]       Before considering the second objection to the umpire, I should note a further problem which resulted in the case at bar from the confusion surrounding personal characteristics which may be the cause and reason for the alleged discrimination.

[32]       Counsel for the applicant referred at times to women in general and elsewhere to women who have left the labour market or who left it to look after their children. In the notice of a constitutional question, mention was also made of [TRANSLATION] "women holding more precarious jobs", and later, of [TRANSLATION] "women, especially those between 25 and 64 years old, and particularly women in a parental status, in inverse proportion to their children's age".

[33]       It seems to me that there is a combination of personal characteristics here. The discrimination was alleged by women who have children or, to use the phrase adopted in Lesiuk, of "women in a parental status". For the sake of judicial consistency I will use for the purposes of these reasons the phrase "women in a parental status". The references to the labour market and the precariousness of employment, for example, are only, as was the case in para. 36 of Lesiuk, a means of describing the circumstances in which women in a parental status are discriminated against. The impact of these circumstances will be more noticeable in the third stage of the Law approach. The relevant comparison group suggested by the applicant is that of men in general. I adopt that suggestion.

[34]       As I understand the Attorney General of Canada's arguments, the DEREMPA rule has two separate purposes, in imposing more stringent eligibility conditions on persons who are new entrants or re-entrants to the labour force. In the first case, more is required, since the plan is a contributory one, of persons who have never so far contributed to the plan. In the second case, more is required of persons who have left the plan, probably after benefiting from it, in order to encourage them not to withdraw from the labour force unnecessarily. Essentially, the DEREMPA rule seeks to develop an attitude of attachment to the workplace.

[35]       As I understand the applicant's arguments, women in a parental status who return to the labour market after having chosen not to resume work when their maternity leave ran out, and instead looked after their children for a time, have more problems than men in finding stable employment. Accordingly, it may be more difficult for them to accumulate the additional number of weeks required by the DEREMPA rule, and that consequently would have the effect of putting women in a parental status at a disadvantage.

[36]       The applicant's burden was to show in the first stage of the approach set out in Law that the employment which women in a parental status find and then lose after returning to the labour force is likely, because of their family obligations, to be of shorter duration than what men find, and not able to give them the required number of weeks of insurable employment as easily. That is undoubtedly what counsel for the applicant was referring to when he spoke, in the notice of a constitutional question, of [TRANSLATION] "women holding more precarious employment".

[37]       I repeat, counsel for Ms. Périgny did not argue in this Court that the basic requirements should be different for women than for men. He did not challenge s. 6(1) and (2) of the Act, which apply to insured persons other than a new entrant or re-entrant to the labour force. He challenged the additional requirement imposed by s. 6(3) and (4) on those persons who re-enter the labour force, as in his submission that section has a harsher effect on women in a parental situation who return to the labour force after leaving it to care for their child.

[38]       I thus come to the second objection made against the umpire by the applicant. This objection has to do with the burden of proof and the findings of fact made by the umpire.

[39]       In my opinion, there are two ways of looking at the burden of proof. We can require direct evidence which shows, with supporting statistics, that women in a parental situation are denied benefits more often than men as a result of application of the DEREMPA rule. As the umpire noted, the evidence on this point is lacking.

[40]       Alternatively, we can ensure by indirect evidence that the applicant establishes that women in a parental status who return to the labour market after looking after their children for a few months or years have more problems than men in finding stable employment, and are consequently more subject to the DEREMPA rule. This is what the expert witness for the applicant, Prof. Rose, was particularly concerned to show. It goes without saying that the burden of establishing actual discrimination by indirect evidence is more difficult to discharge.

[41]       I admit that I am not quite clear as to the method adopted by the umpire or the degree of evidence he required. In para. 112, he said that [TRANSLATION] "probable evidence is insufficient", which to me seems to run directly counter to the balance of probabilities standard which he appears to follow in para. 139. In para. 167, he said he was unable [TRANSLATION] "to determine with certainty" the effects of the rule. In short, it appears that the umpire was in principle aware that the applicable rule was that of the balance of probabilities, but that although he correctly described the rule he may not have applied it in practice.

[42]       It is also not clear that the umpire really took into account the fact that the parliamentary debate and the controversy surrounding the adoption and maintenance of the DEREMPA rule in connection with the Unemployment Insurance Act reflected a very widespread belief that the rule affected women more severely than men. I do not think that such a belief can in itself establish that the rule actually is discriminatory, but I think that the fact that so many persons and agencies involved in the decision-making thought that the measure could have this effect should be taken into account by the umpire in his overall assessment of the evidence.

[43]       This is an application for judicial review. The Court will only intervene if, by saying that he was not satisfied with the evidence submitted, the umpire imposed an unduly heavy burden on the applicant or did not take relevant factors into account. As there is some doubt in my mind in this regard, I would ordinarily have referred the matter back to the umpire to be reconsidered by him, but this case has lasted so long, and in view of the conclusion I arrive at below, I accept the suggestion by counsel for the applicant that the Court should complete the procedure proposed by Law on the basis that the first step was dealt with.

[44]       On the second step, I consider that in view of Lesiuk the applicant easily meets this requirement: the differential treatment was essentially based on sex, an expressly recognized ground, and the analogous ground of parental status.

[45]       On the third stage, the courts do not readily conclude there has been any infringement of s. 15(1) of the Charter when the differential treatment results from contributory benefit plans such as the Canada Pension Plan (see Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703; Her Majesty the Queen v. Bear, not reported, 2003 FCA 40) and the employment insurance plan (see Lesiuk, supra). Whether what is at issue is a temporary deficiency as in Granovsky, income earned by Indians holding employment on a reserve, as in Bear, or women in a parental status as in Lesiuk, the Supreme Court of Canada and this Court have been hesitant to call in question the choices made by Parliament.

[46]       Accordingly, in Granovsky, supra, Binnie J., at para. 79 of his reasons, said the following:

. . . in the context of a contributory benefits plan, Parliament is inevitably called upon to target the particular group or groups it wishes the CPP to subsidize. Drawing lines is an unavoidable feature of the CPP and comparable schemes.

[47]       In Lesiuk, Létourneau J.A. said regarding the employment insurance plan:

[16]         It is in the context of such a scheme that the respondent seeks, in effect, either the complete elimination or a substantial lowering of the eligibility requirements without providing adequate or alternative parameters for the future. As will become evident when further discussing the respondent's contentions, other groups such as visible minorities, immigrants or disabled workers who fail to meet the MERs and are denied benefits could be justified in making similar claims. Indeed, in case of simply lowering the MERs, members of the respondent's group or of these other groups who would not meet the new lowered threshold would still be entitled to make the same claim on the same basis. Challenges could be made by the remaining members of these groups until, in the end, there is no threshold.

[48]       In Bear, Strayer J. extended his reluctance to all "social programmes of distributive justice":

[24]         As Law indicates, it is necessary in carrying out this analysis to have regard to the purpose of subsection 15(1). It is, I venture to say, not inappropriate to look at the actual language employed in that subsection as a guide to its meaning.

It is striking to note that the word "dignity" does not appear anywhere in subsection 15(1), nor for that matter any place else in the Charter. One must take care not to be drawn into a false syllogism that because all discrimination prohibited by the language of section 15(1) attenuates the dignity of its victims, therefore all attenuation of personal dignity is a prohibited form of discrimination. To follow that logic is to trivialize the great purposes of the Charter. It is difficult to believe that this subsection was intended to stamp out all slights to human dignity in general, or in particular to eradicate all differential treatment of various categories of people under social programmes of distributive justice. The history of the Charter and the "mischief" it was to correct would suggest instead that it was designed to remedy more blatant and profound attacks on equality usually, though not always, enacted for a purpose that would clearly involve such consequences. I believe this to be consonant with the statement of Iacobucci J. in Law (para. 51) that the purpose of subsection 15(1) "is to prevent the violation of essential human dignity". (Emphasis added.)

[49]       The threshold is thus a high one in the case at bar and it is here that deficiencies in the evidence, combined with what is essentially a very special situation in which the applicant finds herself, and the concern of Parliament for detail in implementing the measure contained in s. 6(3) and (4) of the Unemployment Insurance Act, turn into an insurmountable obstacle.

[50]       No lengthy proof is required in the case at bar to see that the impugned measure does not infringe the essential dignity of women in a parental status. Nor is there any need to consider individually the contextual factors which Law suggests _ but does not require _ should be examined.

[51]       Counsel for the respondent emphasized the fact that in her affidavit the applicant nowhere said that her dignity had been infringed by application of the DEREMPA rule. Counsel added that it was difficult to regard as undignified the particular situation in which the applicant found herself. She held employment as a teacher, and there is nothing precarious about that. She benefited from conditions of employment which enabled her to stay with her child well beyond the expiry of her maternity leave. She received unemployment insurance benefits for part of her maternity leave. Together with her husband, she took the decision to leave the area in which she had guaranteed employment. She did not make any objection at the time benefits were first denied, on July 18, 1991, although the denial was based on the DEREMPA rule. It was not until the second rejection in February 1992, when she saw that her severance pay did not make her any more eligible, that she made an objection. In short, counsel argued that there were few indications of indignity in the applicant's particular history and situation.

[52]       These comments about the applicant's position are obviously not completely irrelevant, especially where the remedy sought is a personal exemption, but they are not conclusive by themselves.

[53]       The legislation and regulations on unemployment insurance have evolved in response to changes taking place in the labour market and have sought to adapt gradually to society's changing needs. Special attention has been paid to women in general, and women in a parental situation in particular. The purpose and effect of many provisions has been to adapt the plan to the requirements of pregnancy and maternity. The impugned measure is part of those provisions.

[54]       Parliament itself moderated the requirement of insurable employment for twenty weeks during the qualifying period _ s. 6(3) of the Act _ by allowing certain persons who had fourteen weeks of insurable employment in the year preceding commencement of the qualifying period to be qualified (s. 6(4) of the Act). By a legal fiction established in s. 51.1(1)(a)(ii) of the Regulations, those persons include women who have received earnings under a wage-loss indemnity plan by reason of pregnancy.

[55]       Parliament, and then the cabinet, have sought to moderate the impact of the DEREMPA rule on certain women in a parental status. It might be said that this moderation is not sufficiently general, that it should have extended to all women in a parental status regardless of the number of years they wished to spend at home with their child, whatever the conditions of employment they had and whatever the family decisions they chose to make. What the applicant is essentially objecting to in the disputed measure is that it was not adapted to her personal circumstances, which as we have seen were out of the ordinary. Parliament cannot foresee all contingencies, nor does it seek to provide for all possibilities, in the sense that it is entitled to target certain persons rather than others. The disputed measure is particularly complex. In particular, the Regulations reflect a sincere effort to benefit certain individuals, including certain women in a parental status. It may not be the ideal solution or the solution that suited the applicant, but I think it is difficult to conclude that an attempt, perhaps an imperfect one to benefit certain women in general, and women in a parental status in particular, infringes the essential dignity of certain other women.

[56]       I will conclude by adopting these words of Létourneau J.A. in Lesiuk:

The eligibility requirements are not a manifestation of a lack of respect or loss of dignity. They are an administratively necessary tool tailored to correspond to the requirements of a viable contributory insurance scheme.

(para. 51)

[57]       I would dismiss the application for judicial review, in the circumstances without costs.

I concur.

Marc Noël, J.A.

I concur.

J.D. Denis Pelletier, J.A.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 APPEAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               A-405-01

STYLE OF CAUSE:                                                     LYNE PÉRIGNY v. THE ATTORNEY

GENERAL OF CANADA

PLACE OF HEARING:                                                Montréal, Quebec

DATE OF HEARING:                                                  January 14, 2003

REASONS FOR JUDGMENT:                                  Décary J.A.

CONCURRED IN BY:                                                 Noël J.A.

Pelletier J.A.

DATE OF REASONS:                                                  February 21, 2003

APPEARANCES:

Jean-Guy Ouellet                                                               FOR THE APPLICANT

Stéphanie Bernstein

Carole Bureau FOR THE RESPONDENT

Paul Deschênes

SOLICITORS OF RECORD:

Ouellet, Nadon et Ass.                                                    FOR THE APPLICANT

1406, rue Beaudry

Montréal, Quebec

Morris Rosenberg                                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Department of Justice

Ottawa, Ontario