A-121-77
Attorney General of Canada (Applicant)
v.
Stella Bliss (Respondent)
Court of Appeal, Pratte, Heald and Urie JJ.—
Vancouver, May 19; Ottawa, June 2, 1977.
Judicial review — Unemployment insurance — Respondent
not entitled to pregnancy benefits — Denied regular benefits
before expiry of statutory fourteen-week period — Whether
denial contrary to Canadian Bill of Rights' "equality before
the law" — Federal Court Act, s. 28 — Unemployment
Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 30, 46 —
Canadian Bill of Rights, S.C. 1960, c. 44, s. 1(b) (R.S.C. 1970,
Appendix III).
An Umpire decided that section 46 of the Unemployment
Insurance Act, 1971, violated the Canadian Bill of Rights and
therefore was invalid. That section imposed more stringent
requirements on women receiving benefits as a result of unem
ployment due to confinement and denied pregnant women the
normal unemployment insurance benefits available to those
able and available for work. The Umpire ruled that the section
infringed the right to equality before the law. The sole question
raised by the applicant is the correctness of the Umpire's
finding.
Held, the application is allowed. The right to equality before
the law has been held to mean "equality in the administration
or application of the law by the law enforcement authorities
and the ordinary courts of the land." Section 46 did not have
the effect of depriving the respondent of her right to equality
before the law within this interpretation. The right to equality
before the law could also be defined as the right of the
individual to be treated as well by legislation as others who, if
only relevant facts were taken into consideration, would be
judged to be in the same situation. It cannot be said that
Parliament's decision with respect to section 46 was founded on
irrelevant considerations; it follows that the legislation adopted
to implement that decision was "enacted for the purpose of
achieving a valid federal objective" and did not infringe any-
body's right to "equality before the law".
Attorney General of Canada v. Lavell [1974] S.C.R. 1349;
Prata v. M.M. & I. [1976] 1 S.C.R. 376 and R. v.
Burnshine [1975] 1 S.C.R. 693, applied. The Queen v.
Drybones [1970] S.C.R. 282, distinguished.
APPLICATION for judicial review.
COUNSEL:
A. M. Garneau and L. E. Holland for
applicant.
Allan H. MacLean and C. Lynn Smith for
respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Vancouver Community Legal Assistance
Society, Vancouver, for respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: The Attorney General of Canada
seeks the review, pursuant to section 28 of the
Federal Court Act, of a decision of an Umpire
under the Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48, allowing an appeal by the
respondent from a decision of a Board of Referees.
The Umpire's decision is based on the finding
that section 46 of the Unemployment Insurance
Act, 1971, contravenes section 1(b) of the Canadi-
an Bill of Rights, S.C. 1960, c. 44,' and is, for
that reason, inoperative. The sole question raised
by this application relates to the correctness of
that finding.
The Unemployment Insurance Act, 1971, pro
vides for the payment of three kinds of benefits to
those who, after having been employed in insur-
able employment for a certain time, become unem
ployed and have "an interruption of earnings from
employment". First, the ordinary benefits are pay
able to those who are unemployed and are
"capable of and available for work". Second, the
sickness benefits are payable to those who become
unemployed by reason of "illness, injury or quar
antine"; unlike the ordinary benefits, they are
payable to persons who are incapable of work.
' That provision reads as follows:
1. It is hereby recognized and declared that in Canada
there have existed and shall continue to exist without dis
crimination by reason of race, national origin, colour, reli
gion or sex, the following human rights and fundamental
freedoms, namely
(b) the right of the individual to equality before the
law ...;
Finally, section 30 of the Act 2 provides for the
payment of benefits for a period of fourteen weeks
to pregnant women on the occasion of their con
finement. In order to be entitled to these pregnan
cy benefits, unemployed women must have been
employed for a longer time than the time required
to qualify for the other kinds of benefits; on the
other hand, the pregnancy benefits are payable
irrespective of the fact that the claimant may be
capable of work or unavailable for work.
2 That section reads as follows:
30. (1) Notwithstanding section 25 or 46 but subject to
this section, benefits are payable to a major attachment
claimant who proves her pregnancy, if she has had ten or
more weeks of insurable employment in the twenty weeks
that immediately precede the thirtieth week before her
expected date of confinement; and for the purposes of this
section, any weeks in respect of which the major attachment
claimant has received benefits under this Act that immedi
ately precede the thirtieth week before her expected date of
confinement shall be deemed to be weeks of insurable
employment.
(2) Benefits under this section are payable for each week
of unemployment in
(a) the fifteen week period that begins eight weeks before
the week in which her confinement is expected, or
(b) the period that begins eight weeks before the week in
which her confinement is expected and ends six weeks
after the week in which her confinement occurs,
whichever is the shorter, if such a week falls in her initial
benefit period established pursuant to section 20 exclusive of
any re-established period under section 32.
(3) When benefits are payable to a claimant in respect of
unemployment caused by pregnancy and any allowances,
monies or other benefits are payable in respect of that
pregnancy to the claimant under a provincial law, the ben
efits payable to the claimant under this Act shall be reduced
or eliminated as prescribed.
(4) For purposes of section 23, the provisions of section 25
do not apply to the two week period that immediately
precedes the periods described in subsection (2).
(5) If benefit is payable to a major attachment claimant
under this section and earnings are received by that claimant
for any period that falls in a week in the periods described in
subsection (2), the provisions of subsection (2) of section 26
do not apply and all such earnings shall be deducted from the
benefit paid for that week.
Section 46 of the Act' which was held by the
Umpire to be inoperative, provides that, during the
fourteen-week period mentioned in section 30, no
pregnant woman may claim other benefits under
the Act. The most obvious effect of that section is
to deprive the pregnant women who during that
period are capable of and available for work from
the right to claim the ordinary benefits.
The respondent had become unemployed by
reason of pregnancy. She had not been employed
for a sufficiently long time to be entitled to the
pregnancy benefits. A few days after the birth of
her child, she was capable of and available for
work but could not find employment. She applied
to the Unemployment Insurance Commission. The
fourteen-week period mentioned in section 30 had
not yet expired. She was not claiming the pregnan
cy benefits; it was clear that she was not entitled to
them. She was claiming the ordinary benefits to
which she would have clearly been entitled had it
not been for her pregnancy. Both the Commission
and the Board of Referees rejected her claim on
the ground that section 46 precluded her from
claiming ordinary benefits until the expiry of the
fourteen-week period. Those decisions were set
aside by the Umpire, who, after having recalled
the general scheme of the Act under which ordi
nary benefits are payable to the unemployed who
are "capable of and available for work", expressed
himself in the following terms:
Section 46 is a departure, and more, from the general
statutory scheme. It plainly denies benefits to certain claimants,
who might otherwise be covered by the entitlement provisions,
even though those claimants prove themselves separated from
employment, capable of and available for work, but unable to
obtain suitable employment. The denial is predicated firstly on
the biological difference between the sexes. The section then
goes further and differentiates between pregnant women, others
who have recently given birth, and those women who do not fall
within those descriptions.
I do not know the purpose of the legislators in injecting s. 46
into the 1971 legislation. It was suggested that, pre-1971, there
was an assumption that women eight weeks before giving birth
3 That section reads as follows:
46. Subject to section 30, a claimant is not entitled to
receive benefit during the period that commences eight weeks
before the week in which her confinement for pregnancy is
expected and terminates six weeks after the week in which
her confinement occurs.
and for six weeks after, were, generally speaking, not capable of
nor available for work; this, somehow gave rise to administra
tive difficulties or abuses; section 46 was enacted to make it
quite clear that, in the 14 week period, pregnant women and
women who had produced children, were, for the purpose of the
statute, not capable of nor available for work, and therefore not
entitled to benefits. All that may be. Nevertheless, I am driven
to the inescapable conclusion that the impugned section, acci
dentally perhaps, authorizes discrimination by reason of sex,
and as a consequence, abridges the right of equality of all
claimants in respect of the Unemployment Insurance
legislation.
Counsel for the applicant contended that the
Umpire had erred in that the respondent had not
been the victim of discrimination by reason of her
sex and that, in any event, she had not been
deprived of her right to "equality before the law".
On behalf of the respondent, it was first argued
that the facts of this case cannot be distinguished
from those of the Drybones case (The Queen v.
Drybones [1970] S.C.R. 282). In that case, said
counsel, a section of the Indian Act, R.S.C. 1970,
c. I-6, which discriminated against Indians on the
basis of their race, was held to deprive the Indians
of their right to equality before the law and, for
that reason to be inoperative; section 46, said he,
should similarly be held to be inoperative since it
discriminates against pregnant women by reason
of sex and, as a consequence, infringes section 1 (b)
of the Canadian Bill of Rights.
Counsel for the respondent also contended that
even if section 46 does not constitute discrimina
tion by reason of sex, it nevertheless deprives
"pregnant women" from their right to equality
before the law since, without any valid reason, it
treats them differently from all other claimants
who are always entitled to the ordinary benefits if
they prove their availability. This difference of
treatment is unacceptable, argued counsel, because
there is no valid reason for it. During the fourteen-
week period mentioned in section 30, it was said,
there is no more reason to deprive pregnant women
from the ordinary benefits than there is to impose
that penalty on women having red hair or blue
eyes.
A preliminary observation is perhaps in order.
The Canadian Bill of Rights does not expressly
prohibit discrimination. That word is used only in
the English version of section 1 which proclaims
the existence of certain rights and freedoms and it
is not used in the enumeration of those rights and
freedoms but, rather, in that part of the section
which indicates that those rights and freedoms
shall benefit everyone, irrespective of his race,
national origin, colour, religion or sex. The ques
tion to be determined in this case is therefore, not
whether the respondent has been the victim of
discrimination by reason of sex but whether she
has been deprived of "the right ... to equality
before the law" declared by section 1(b) of the
Canadian Bill of Rights. Having said this, I wish
to add that I cannot share the view held by the
Umpire that the application of section 46 to the
respondent constituted discrimination against her
by reason of sex. Assuming the respondent to have
been "discriminated against", it would not have
been by reason of her sex. Section 46 applies to
pregnant women, it has no application to women
who are not pregnant, and it has no application, of
course, to men. If section 46 treats unemployed
pregnant women differently from other unem
ployed persons, be they male or female, it is, it
seems to me, because they are pregnant and not
because they are women.
But, was the respondent deprived of her right to
equality before the law by the application to her of
section 46 of the Unemployment Insurance Act,
1971? The answer to that question cannot be
found in the decision of the Supreme Court of
Canada in the Drybones case which, in my view, is
clearly distinguishable from the present one. The
scope of the judgment in the Drybones case was
spelled out by Ritchie J., who delivered the majori
ty reasons, at page 298 as follows:—
It appears to me to be desirable to make it plain that these
reasons for judgment are limited to a situation in which, under
the laws of Canada, it is made an offence punishable at law on
account of race, for a person to do something which all
Canadians who are not members of that race may do with
impunity;
The expression "equality before the law" in
section 1(b) of the Canadian Bill of Rights cannot
be interpreted literally as meaning that all persons
must have, under all statutes, exactly the same
rights and obligations. Otherwise, the Canadian
Bill of Rights would sterilize most federal legisla
tion since the rights, duties and obligations of
individuals under the law always vary according to
their situation. As was decided by the Supreme
Court of Canada in Prata v. M.M. & 1. [ 1976] 1
S.C.R. 376 and in R. v. Burnshine [1975] 1 S.C.R.
693, section 1(b) of the Canadian Bill of Rights
does not require that all federal statutes must
apply to all individuals in the same manner.
It is natural that the rights and duties of
individuals vary according to their situation. But
this is just another way of saying that those rights
and duties should be the same in identical situa
tions. Having this in mind, one could conceive "the
right ... to equality before the law" as the right of
an individual to be treated by the law in the same
way as other individuals in the same situation.
However, such a definition would be incomplete
since no two individuals can be said to be in
exactly the same situation. It is always possible to
make distinctions between individuals. When a
statute distinguishes between persons so as to treat
them differently, the distinctions may be either
relevant or irrelevant. The distinction is relevant
when there is a logical connection between the
basis for the distinction and the consequences that
flow from it; the distinction is irrelevant when that
logical connection is missing. In the light of those
considerations, the right to equality before the law
could be defined as the right of an individual to be
treated as well by the legislation as others who, if
only relevant facts were taken into consideration,
would be judged to be in the same situation.
According to that definition, which, I think, coun
sel for the respondent would not repudiate, a
person would be deprived of his right to equality
before the law if he were treated more harshly
than others by reasons of an irrelevant distinction
made between himself and those other persons. If,
however, the difference of treatment were based on
a relevant distinction (or, even on a distinction that
could be conceived as possibly relevant) the right
to equality before the law would not be offended.
Of course, that definition is not the one which
was adopted by Mr. Justice Ritchie in Attorney
General of Canada v. Lave11 [ 1974] S.C.R. 1349.
In that case, Mr. Justice Ritchie, after having
referred to certain quotations on the meaning of
the expression "equality before the law" said, at
pages 1366-67:
The relevance of these quotations to the present circum
stances is that "equality before the law" as recognized by Dicey
as a segment of the rule of law, carries the meaning of equal
subjection of all classes to the ordinary law of the land as
administered by the ordinary courts, and in my opinion the
phrase "equally before the law" as employed in section 1(b) of
the Bill of Rights is to be treated as meaning equality in the
administration or application of the law by the law enforcement
authorities and the ordinary courts of the land. This construc
tion is, in my view, supported by the provisions of subsections
(a) to (g) of s. 2 of the Bill which clearly indicate to me that it
was equality in the administration and enforcement of the law
with which Parliament was concerned when it guaranteed the
continued existence of "equality before the law".
I consider it obvious that section 46 of the
Unemployment Insurance Act, 1971, did not have
the effect of depriving the respondent of her right
to equality before the law within the meaning
ascribed to that expression by Ritchie J. in the
Lovell case. However, as Ritchie J. was not speak
ing for the majority of the Court in that case, it is
perhaps not superfluous for me to say that I would
reach the same conclusion if I were to adopt the
wider definition of "equality before the law" to
which I have referred.
Section 46 of the Unemployment Insurance Act,
1971, does not stand alone. It must be read with
section 30 and the other provisions of the Act. It is
apparent, in my view, that Parliament considered
that unemployment caused by pregnancy was
something different from unemployment caused by
sickness or unemployment which gives rise to the
payment of regular benefits. While such a distinc
tion may be thought to be unwarranted, it cannot
be said to be entirely without foundation. Unem
ployment caused by pregnancy, contrary to the
other kinds of unemployment which give rise to the
payment of benefits, is usually the result of a
voluntary act. Moreover, Parliament possibly con
sidered desirable that pregnant women refrain
from work for fourteen weeks on the occasion of
their confinement. It was not illogical, then, to
deny them during that time, the benefits which are
payable only to those who are available for work
and to grant them the right to receive benefits of a
new kind, payable without regard to the capacity
to work or the availability for work. Having thus
created this new kind of benefits in favour of
pregnant women, Parliament had to determine on
what conditions they would be payable. More pre
cisely, it had to determine after what period of
employment women would be entitled to receive
them. That period might have been the same as
the one required in respect of the ordinary ben
efits, in which case the respondent's claim would
not have been rejected by the Commission. Parlia
ment chose to provide that the period of employ
ment required to qualify for the pregnancy ben
efits, which are in certain respects more generous
than the ordinary benefits, should be longer than
the period required for those other benefits. That
decision may be thought to have been unwise, but
nevertheless, it cannot be said that it was founded
on irrelevant considerations; it follows that, in my
view, the legislation adopted to implement that
decision was "enacted for the purpose of achieving
a valid federal objective", (see Prata v. M.M. & I.
[1976] 1 S.C.R. 376 at 382), and did not infringe
anyone's right to "equality before the law".
For those reasons, I would set aside the
Umpire's decision and refer the matter back to
him for determination on the basis that section 46
of the Unemployment Insurance Act, 1971, does
not contravene section 1(b) of the Canadian Bill
of Rights.
* * *
HEALD J.: I concur.
* * *
URIE J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.