A-507-81
Attorney General of Canada (Applicant)
v.
Bernadette Stuart (Respondent)
Court of Appeal, Thurlow C.J., Kelly and Cowan
D.JJ.—Toronto, June 14 and 18, 1982.
Unemployment insurance — Respondent, while pregnant,
became unemployed by reason of illness unrelated to pregnan
cy — Respondent's claim rejected by Commission and Board
of Referees on ground of ineligibility for maternity benefits,
claimant not having ten weeks of insurable employment —
Application to review and set aside Umpire's ruling that
respondent's claim not for maternity benefits, but for benefits
resulting from unemployment caused by illness — Whether
respondent entitled to regular benefits — Applicant relying on
s. 46 of Unemployment Insurance Act, 1971 which excludes
pregnant women from entitlement to any benefits during period
specified therein unless requirement of ten weeks of insurable
employment met — Applicant further relying on Bliss case,
[19791 1 S.C.R. 183 — Court bound by interpretation of s. 46
by Supreme Court in Bliss: no discrimination by reason of sex,
no denial of equality before law — S. 46 not rendered inopera
tive by Canadian Bill of Rights — Bliss case indistinguishable
from present one — S. 28 of Charter not applicable as Charter
not retrospective — Convention relating to elimination of
discrimination not applicable where definitive interpretation
made by Supreme Court — Application allowed — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Unemploy
ment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 25 (as
rep. by S.C. 1974-75-76, c. 80, s. 7; 1976-77, c. 54, s. 36),
30(1) (as rep. idem, c. 54, s. 38), 30(2) (as rep. by S.C.
1974-75-76, c. 66, s. 22), 46 — Canadian Bill of Rights, S.C.
1960, c. 44 [R.S.C. 1970, Appendix III], s. 1(b) — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 15, 28, 32, 52(1) — Convention on the Elimination
of All Forms of Discrimination Against Women, Art. 11.
The respondent, while pregnant, became unemployed. She
filed an application for benefits due to work stoppage by reason
of illness. The Unemployment Insurance Commission and the
Board of Referees, considering her claim as one for maternity
benefits, rejected it on the ground of her ineligibility for such
benefits, as she had only seven weeks of insurable employment
rather than the ten required by subsection 30(1) of the Unem
ployment Insurance Act, 1971. The Umpire found that the
respondent had applied for sickness benefits, not maternity
benefits, and allowed her claim. The applicant seeks to have the
Umpire's decision reviewed and set aside. The issue is whether
the claimant is entitled to regular benefits. The applicant relies
on section 46 of the Act whereby a pregnant woman, unless she
has had ten weeks of insurable employment as required by
subsection 30(1) of the Act, is not entitled to benefits during
the period that begins eight weeks before the confinement is
expected and ends six weeks after the week it occurs. The
applicant further relies on the Bliss case, [1979] 1 S.C.R. 183,
in which the Court held that section 46 did not deny "equality
before the law" and thus was not rendered inoperative by the
Canadian Bill of Rights. The respondent submits that the
reasoning in Bliss does not apply in the present case since the
claimant in Bliss became unemployed by reason of her preg
nancy. The respondent also submits that the applicant's inter
pretation of section 46 is contrary to paragraph 1(b) of the
Canadian Bill of Rights (equality before the law), to section 28
of the Canadian Charter of Rights and Freedoms (rights
guaranteed equally to both sexes) and to the Convention on the
Elimination of All Forms of Discrimination Against Women.
Held, the application should be allowed. This Court is bound
to accept and apply the reasoning of the Supreme Court in the
Bliss case with regard to the interpretation of section 46 of the
Act. Section 46 excludes pregnant women from entitlement to
any benefits during the period specified therein unless the
requirement in subsection 30(1) of the Act (i.e. ten weeks of
insurable employment) is met. The Supreme Court held that
section 46 was not rendered inoperative by the Canadian Bill of
Rights as constituting discrimination by reason of sex resulting
in denial of equality before the law to pregnant and child-bear
ing women who failed to fulfil the conditions of subsection
300). The fact that this claimant ceased to be employed by
reason of sickness unrelated to pregnancy does not distinguish
her case from that of the claimant in Bliss. The respondent's
argument based on the Charter also fails. The claimant filed
her application on September 5, 1980. The Charter had not, at
that time, been proclaimed in force. Since the Charter is not
retrospective, the claimant cannot seek the benefit of any rights
conferred by it. Finally, the Convention cannot be used by this
Court in construing and interpreting sections of the Unemploy
ment Insurance Act, /97/, particularly in cases where a definite
interpretation has been made by the Supreme Court of Canada.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Bliss v. The Attorney General of Canada, [1979] 1
S.C.R. 183.
APPLIED:
In re the Constitution Act, 1981, Schedule B, in re the
Immigration Act, 1976 and in re the execution of a
deportation order made on February 20, 1981, against
Robert Joseph Gittens, [1983] 1 F.C. 152 (T.D.).
REFERRED TO:
Latif v. Canadian Human Rights Commission et al.,
[1980] 1 F.C. 687 (C.A.).
COUNSEL:
Marlene I. Thomas for applicant.
M. Eberts for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Tory, Tory, DesLauriers & Binnington,
Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
COWAN D.J.: This is an application to review
and set aside the order of an Umpire under the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, who allowed an appeal by the
respondent from the decision of the Board of
Referees, confirming the decision of the Unem
ployment Insurance Commission rejecting her
claim to benefits.
The respondent, Bernadette Stuart, filed an
application, dated September 5, 1980, for benefits
under the Act stating that she had been employed
from February 15, 1980, to August 22, 1980, both
dates inclusive, that she had stopped working by
reason of illness consisting of hospitalization for
acute appendicitis requiring surgery on August 25,
1980, and that the first day she was unable to
work was August 25, 1980. In answer to the
question whether she was then pregnant, she stated
that she was and that the expected date of birth
was November 3, 1980, that she was not laid off
because of her employer's policy regarding
employment during pregnancy, and that she would
not be returning to her job when the maternity
period had expired as her recovery date was
unknown and the place of business of her employer
was to be closed down shortly.
The District Office of the Department of
Employment and Immigration rejected her claim
for benefits and sent her a notice of non-eligibility
for maternity benefits stating that between the
50th and 30th week before the expected date of
birth of her child she had only seven weeks of
insurable employment while a minimum of ten
weeks was required.
The respondent's submission is that her claim
was not for maternity benefits but for regular
unemployment insurance benefits by reason of her
illness and that she is entitled to these regular
benefits and should not be denied them by reason
only of the fact of her pregnancy.
The respondent would normally be entitled to
regular benefits by reason of interruption of earn
ings from her employment caused by her illness,
since she had more than the required number of
weeks of insurable employment in the period of
fifty-two weeks immediately preceding the appli
cable benefit period.
The applicant relies on the provisions of section
46 of the Act which provides 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 confine
ment occurs.
Section 25 and subsections 30(1) and (2) read
as follows:
25. A claimant is not entitled to be paid initial benefit for
any working day in a benefit period for which he fails to prove
that he was either
(a) capable of and available for work and unable to obtain
suitable employment on that day, or
(b) incapable of work by reason of prescribed illness, injury
or quarantine on that day, and that he would be otherwise
available for work.
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 confine
ment; and for the purposes of this section, any weeks in respect
of which the major attachment claimant has received benefits
under this Act or any prescribed weeks that immediately
precede the thirtieth week before her expected date of confine
ment shall be deemed to be weeks of insurable employment.
(2) Benefits under this section are payable for each week of
unemployment in the period
(a) that begins
(i) eight weeks before the week in which her confinement
is expected, or
(ii) the week in which her confinement occurs,
whichever is the earlier, and
(b) that ends
(i) seventeen weeks after the week in which her confine
ment occurs, or
(ii) fourteen weeks after the first week for which benefits
are claimed and payable in any benefit period under this
section,
whichever is the earlier,
if such a week of unemployment is one of the first fifteen weeks
for which benefits are claimed and payable in her benefit
period.
The respondent appealed from the ruling of the
Unemployment Insurance Commission. The Board
of Referees dismissed the appeal and the respond
ent appealed to the Umpire, who allowed the
appeal. The Umpire found that Mrs. Stuart had
applied for benefits because she had an interrup
tion of earnings from employment by reason of
illness and not by reason of pregnancy and that she
had not applied for maternity benefits. The
Umpire found that the Commission had changed
the grounds on which the application was based to
that based on pregnancy and he stated that:
It appears that the Commission policy is that if a married
woman who is ill with any ailment becomes pregnant the
Commission will only consider a claim for pregnancy benefit. I
have searched the Act for Regulations and can find no justifi
cation of any kind for such a policy.
The decision of the Board of Referees dismissing
her appeal stated that:
Under the interpretation of the Act the appellant is not eligible
for sickness benefits (8) eight weeks prior to her expected date
of confinement. The claim became effective on the 7 September
1980. The Board further concluded that the appellant would
have had to apply for an antedate in order to be eligible for
sickness benefits. The Board further concluded that the ques
tion before them is whether the appellant has (10) ten weeks of
insurable employment and they unanimously find that the
appellant does not have more than (7) weeks and therefore is
ineligible for benefits.
The Umpire said:
I have no hesitation in allowing this appeal. While there is little
doubt that a Commission administering a complex statute must
establish some policies for dealing with various situations that
arise frequently. However there is equally no doubt that such
policies cannot be employed where they produce an obviously
unfair situation and in this appeal a most unjust result. In this
case the policy has the effect of depriving a woman who was
entitled to unemployment insurance benefits because of her
ruptured appendix because she happened to be pregnant at the
same time. The policy goes even further. After having changed
the basis of her claim for benefits without her authority we find
that her surgery operates to make her disentitled to maternity
benefits because she cannot supply the 10 weeks of insurable
employment required for maternity benefits.
This appeal is allowed.
The applicant submits that:
(a) the Umpire erred when interpreting the
provisions of the Unemployment Insurance Act,
1971 relating to the respondent's eligibility to
any unemployment insurance benefits during a
period in which she was pregnant;
(b) the Umpire erred in law in styling as a
"Commission policy" a procedure which the
Commission was required to implement by the
provisions of its governing statute;
(c) the Umpire erred in law in holding that
despite the uncontradicted fact that the respond
ent was not eligible for maternity benefits, she
was entitled to sickness benefits, contrary to the
provisions of sections 30 and 46 of the Unem
ployment Insurance Act, 1971.
The applicant submits that section 46 of the Act
states that "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". It is admitted that the first
week in which the respondent would have been
entitled to receive benefits was the week commenc
ing September 7, 1980, that September 7, 1980
was within eight weeks of her expected date of
confinement of November 3, 1980, and that the
respondent did not qualify for maternity benefits
under subsections 30(1) and (2) of the Act by
possessing ten weeks of insurable employment, but
rather, possessed only seven weeks.
It is submitted by the applicant that the effect of
section 46 is that the only benefits to which a
pregnant claimant is entitled during the relevant
period are maternity benefits under subsections
30(1) and (2) of the Act, and that she cannot
claim the regular benefits to which she would
otherwise be entitled because of her illness, if she
were not pregnant. It is submitted that this is so
even though she is not in fact entitled to maternity
benefits in the circumstances.
Counsel for the applicant referred to the case of
Bliss v. The Attorney General of Canada, [ 1979] 1
S.C.R. 183 where Ritchie J. delivered the reasons
for judgment of the Court on an appeal from a
judgment of the Federal Court of Appeal setting
aside a judgment of Collier J., sitting as an
Umpire under the Unemployment Insurance Act,
1971, whereby he allowed an appeal from a deci
sion of the Board of Referees and had thereby held
that section 46 of the Act was inoperative by
reason of the provisions of paragraph 1(b) of the
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C.
1970, Appendix III].
The Supreme Court of Canada dismissed the
appeal and held that section 46 was not rendered
inoperative by the Canadian Bill of Rights as
constituting discrimination by reason of sex result
ing in denial of equality before the law to the
particular restricted class of which the appellant
was a member, namely, pregnant and child-bear
ing women who failed to fulfil the conditions
required by subsection 30(1). It had been submit
ted on behalf of the appellant that the section
denied to members of that class the benefits avail
able to all other claimants both male and female
who had eight weeks of insurable employment and
who were capable of and available for work.
Ritchie J. reviewed the history and purpose of
the Unemployment Insurance Act, 1971 and dis
cussed the meaning and effect of relevant sections
of the Act, including sections 25, 30(1) and (2)
and 46. At pages 188-189, he said:
These sections served to reverse the situation which previously
existed so that pregnant women who can meet the conditions
specified in s. 30(1) are entitled to the special benefits which
that section provides during the period referred to in s. 30(2)
that begins eight weeks before the confinement is expected and
ends six weeks after the week in which it occurs. These benefits
are payable irrespective of whether or not the claimant is
capable of and available for work during that period.
Section 46, however, makes it plain that the extended ben
efits made available to all pregnant women under s. 30 are
accompanied by a concomitant limitation of entitlement which
excludes these women from any benefits under the Act during
the period not exceeding 15 weeks that commences 8 weeks
before her confinement is expected and terminates 6 weeks
after the week in which it occurs unless she can comply with
the condition of entitlement specified in s. 30(1). When these
two sections are read together, as I think they must be, it will
be seen that the governing condition of entitlement in respect of
"unemployment caused by pregnancy" is the fulfilment of the
condition established in s. 30(1) and that unless a claimant has
had the "ten weeks of insurable employment" thereby required,
she is entitled to no benefits during the period specified in s. 46.
The present appellant's "interruption of employment"
occurred four days before the birth of her child and was
therefore clearly "unemployment caused by pregnancy", but
she had not fulfilled the conditions required by s. 30(1) when
she applied for unemployment insurance six days later and this
was the reason for her disentitlement.
The appellant's case, however, is that she is not claiming s.
30 pregnancy benefits at all but rather that she was capable of
and available for work but unable to find suitable employment
at the time of her application so that but for s. 46 she would
have been entitled to the regular benefits enjoyed by all other
capable and available claimants, and it is contended that in so
far as that section disentitles her to the enjoyment of these
benefits, it is to be declared inoperative as contravening s. 1(b)
of the Canadian Bill of Rights in that it would constitute
discrimination by reason of sex resulting in denial of equality
before the law to the particular restricted class of which the
appellant is a member.
At page 193, Ritchie J. said:
In the course of his reasons for judgment at first instance,
Mr. Justice Collier made reference to a pre-1971 assumption
"that women eight weeks before giving birth and for six weeks
after, were, generally speaking, not capable of nor available for
work", and in implementation of its apparent policy of
encouraging women to take advantage of the pregnancy ben
efits provided by s. 30, Parliament has, by enacting s. 46,
precluded those who did not or could not avail themselves of
these benefits from being entitled to any insurance benefits at
all during the period described in that section.
Whatever may be thought of the wisdom of this latter
provision, there can, in my view, with all respect, be no doubt
that the period mentioned in s. 46 is a relevant one for
consideration in determining the conditions entitling pregnant
women to benefits under a scheme of unemployment insurance
enacted to achieve the valid federal objective of discharging the
responsibility imposed on Parliament by s. 91(2A) of the
British North America Act.
It is the interpretation of section 46, set out in
the decision of Ritchie J., which the Commission
followed in rejecting the claim of the respondent to
regular benefits when it is admitted she was not
entitled to maternity benefits.
Counsel for the respondent submitted that the
respondent is entitled to regular benefits based on
unemployment caused by illness and not by preg
nancy. Counsel submitted that the reasoning of
Ritchie J. in Bliss, supra, did not apply in the
present case since in Bliss the claimant became
unemployed by reason of the pregnancy. It was
submitted that the Bliss case should not be con
sidered as binding on this Court in the circum
stances of the present case and that we were free
to reach a conclusion contrary to that reached by
the Supreme Court of Canada in Bliss.
I am of the opinion that the reasons for judg
ment of Ritchie J. in the Bliss case set forth the
interpretation of the relevant sections of the Act
and, in particular section 46, which this Court is
bound to accept and apply in this case. The mere
fact that here the claimant ceased to be employed
by reason of sickness apart from pregnancy is not
sufficient, in my opinion, to distinguish this case
from the Bliss case. The reasoning of Ritchie J. in
Bliss applies with equal force in the present case
and this Court is required to reach the same result.
The respondent also submitted that to interpret
subsection 30(1) and section 46 of the Act so as to
deny the claimant, on the ground of her pregnan
cy, her sickness benefits for which she would
otherwise be eligible would be contrary to the
Canadian Bill of Rights, paragraph 1(b), and to
the Canadian Charter of Rights and Freedoms,
being Part I of the Constitutional Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.),
section 28. It is also submitted that, to the extent
that section 46 of the Act requires that the claim
ant be excluded from sickness benefits on the
ground of her pregnancy, it is rendered void by the
Canadian Charter of Rights and Freedoms.
Paragraph 1(b) of the Canadian Bill of Rights
reads as follows:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(b) the right of the individual to equality before the law and
the protection of the law;
In my opinion, the decision of the Supreme
Court of Canada in Bliss, supra, is conclusive on
this question. The mere fact that the claimant,
while pregnant, became unemployed by reason of
sickness unrelated to her pregnancy, does not dis
tinguish her case from that of the claimant in
Bliss. If, as was decided in Bliss, section 46 is not
rendered inoperative in the case of that claimant
by the Canadian Bill of Rights, it is not rendered
inoperative in the case of this claimant by that
statute. The two cases are, in my view,
indistinguishable.
The Canadian Charter of Rights and Freedoms
provides, in part, as follows:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or
activity that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
28. Notwithstanding anything in this Charter, the rights and
freedoms referred to in it are guaranteed equally to male and
female persons.
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect
of all matters within the authority of Parliament including all
matters relating to the Yukon Territories and Northwest
Territories; and
(b) to the legislature and government of each province in
respect of all matters within the authority of the legislature
of each province.
(2) Notwithstanding subsection (1), section 15 shall not have
effect until three years after this section comes into force.
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
The Charter was proclaimed in force on April
17, 1982, and was not in force at the time the
claimant filed her claim for benefits under the
Unemployment Insurance Act, 1971. Mahoney J.,
in In re Gittens*, decided that the Charter is not
retrospective in its operation. He followed the
principle stated by this Court in Latif y. Canadian
Human Rights Commission et al., [1980] 1 F.C.
687 (C.A) at page 702. In Gittens the applicant
asked for an order quashing a deportation order
made on February 20, 1981 and said that subsec
tion 24(1) of the Charter applied and that his
rights or freedoms as guaranteed by the Charter
had been infringed or denied and that he was
thereby given the right to apply to a court of
competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the
circumstances.
*Sub nom. In re the Constitution Act, 1981, Schedule B, in
re the Immigration Act, 1976 and in re the execution of a
deportation order made on February 20, 1981 against Robert
Joseph Gittens, [1983] 1 F.C. 152 (T.D.).
Since the Charter is not retrospective, the claim
ant cannot, in this case, claim the benefit of any
rights conferred by the Charter. Her rights are to
be determined in accordance with the law as it
existed at the date of filing of her claim—Septem-
ber 5, 1980. I note further that section 15 of the
Charter, which deals with the right of every
individual to equality before and under the law
and to equal protection and equal benefit of the
law without discrimination based on race, national
or ethnic origin, colour, religion, sex, age or mental
or physical disability, is subject to the provisions of
subsection 32(2) which provides that section 15
shall not have effect until three years after subsec
tion 32(2) comes into force. Section 15 is therefore
not now in force.
Counsel for the respondent also submitted that
to deny a pregnant person in the position of the
respondent access to sickness benefits for a non-
pregnancy related illness on the ground that she is
at a certain stage of her pregnancy, is contrary to
the impact of Canada's international obligations in
this regard. Reference was made to the United
Nations Convention on the Elimination of All
Forms of Discrimination Against Women signed
on July 17, 1980 and ratified on December 10,
1981. Article 11 of that Convention provides that:
2. In order to prevent discrimination against women on the
ground of marriage or maternity and to ensure their effective
right to work, state Parties shall take appropriate measures;
(b) to introduce maternity leave with pay or with comparable
social benefits without loss of former employment, security or
social allowances; [Emphasis supplied.]
In my opinion, the effect of Canada's signature
to this Convention is that Canada undertakes to do
the things provided for in the Convention. The
Convention cannot be used by this Court in con
struing and interpreting sections of the Unemploy
ment Insurance Act, 1971 particularly in cases
where a definitive interpretation has been made by
the Supreme Court of Canada.
For the foregoing reasons, I am of the opinion
that the decision of the Umpire and the order
signed August 10, 1981 should be set aside and the
matter should be referred back to an Umpire to be
dealt with on the basis that the respondent is not
entitled to unemployment insurance benefit for the
fifteen-week period which commenced on Septem-
ber 7, 1980.
THURLOW C.J.: I concur.
KELLY D.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.