T-3280-76
Sophia Marchak (Plaintiff)
v.
Attorney General of Canada and L. W. Munro
(Defendants)
T-2578-78
Lamberto Avillanoza (Plaintiff)
v.
Attorney General of Canada and A. Evans
(Defendants)
Trial Division, Smith D.J.—Winnipeg, March 13,
and August 3, 1979.
Unemployment insurance — Unemployment Insurance
Commission's notices of disqualification and disentitlement
unanimously upheld by respective Board of Referees hearing
plaintiffs' appeals — Chairman of Board of Referees refused
leave to appeal required by s. 95(c)(ii) of Unemployment
Insurance Act, 1971 — Operative effect and validity of that
section attacked — Did the fact that the Chairman, who
denied leave to appeal, was a member of Board of Referees
from which leave to appeal was sought, constitute bias? —
Were plaintiffs denied equality before the law and natural
justice since they could only appeal with leave because they
were not trade union members? — Unemployment Insurance
Act, 1971, S.C. 1970-71-72, c. 48, s. 95 — Canadian Bill of
Rights, S.C. 1960, c. 44 (R.S.C. 1970, Appendix III), ss. 1, 2.
Plaintiffs' appeals from the Unemployment Insurance Com
mission's notices of disqualification and disentitlement were
unanimously dismissed by the respective Boards of Referees
hearing them. The only avenue of appeal from a unanimous
decision was with leave of the Chairman of the Board of
Referees under subparagraph 95(c)(ii) of the Unemployment
Insurance Act, 1971. This leave was refused. The appeal in
each case attacks the validity and operative effect of this
subparagraph and argument revolved around two circum
stances. Firstly, did the fact that the Chairman, who refused
leave to appeal, had been in each case a member and Chairman
of the Board of Referees from which plaintiff was asking leave
to appeal constitute bias on the part of the Chairman such that
his decision should be reversed? Secondly, what effect did the
provisions of the Canadian Bill of Rights dealing with the right
to equality before the law, and the right to a fair hearing in
accordance with the principles of natural justice, have on each
of plaintiffs' positions, particularly with respect to making an
appeal to the Umpire? Plaintiffs asserted that they suffered
discrimination and inequality before the law by their not being
members of a trade union.
Held, the appeals are dismissed. Parliament intended that
the Chairman should not grant the application for leave to
appeal, unless in his opinion, there was a principle of impor
tance involved in the case or there were other special circum
stances by reason of which leave to appeal ought to be granted.
This provision was to expedite the disposition of appeals that
would or might be thwarted. No evidence suggests that the
Chairman of either Board did not act properly and in accord
ance with the provisions of sections 95 and 96. It is to be
assumed that neither Chairman decided that the case before
him involved an important principle or other special circum
stances by reason of which leave to appeal ought to be granted.
The rules of natural justice concerning a fair hearing do not
require that a person who has had a fair hearing at one appeal
(where his appeal was unanimously dismissed) should have an
inherent right to a further appeal. Plaintiffs complain that
section 95 discriminates against them because neither of them
is a member of an association of workers. That section, how
ever, does not discriminate against anybody by reason of a form
of discrimination mentioned in section 1 of the Canadian Bill
of Rights. Section 95 does not abrogate, abridge or infringe the
right of each plaintiff to equality before the law or deprive
plaintiffs of the right to a fair hearing in accordance with the
rules of natural justice.
Bliss v. Attorney General of Canada [1979] 1 S.C.R. 183,
applied. R. v. Burnshine [1975] 1 S.C.R. 693, applied.
Curr v. The Queen [1972] S.C.R. 889, applied. Prata v.
Minister of Manpower and Immigration [1976] 1 S.C.R.
376, applied. Attorney General of Canada v. Lavell [1974]
S.C.R. 1349, applied. R. v. Drybones [1970] S.C.R. 282,
distinguished.
APPEAL.
COUNSEL:
Charles G. Birks for plaintiffs.
B. J. Meronek for defendants.
SOLICITORS:
Charles G. Birks, Winnipeg, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: The facts and circumstances and
the prayer for relief in these two cases, except for
names and dates, are the same, as were the counsel
for the parties. Counsel consenting, I ordered that
they be heard together.
The facts in each case are not in dispute and
may be stated briefly, as follows.
The plaintiff's application for unemployment in
surance benefit was not allowed and the plaintiff
received from the Commission notices of dis
qualification and disentitlement. The plaintiff
appealed to the Board of Referees, which heard
the appeal and in each case unanimously disal
lowed it. In the Marchak case the Chairman of the
Board of Referees was the defendant L. W.
Munro. In the Avillanoza case the Chairman was
the defendant A. Evans. In each case the plaintiff
applied to the Chairman, pursuant to section 95 of
the Unemployment Insurance Act, 1971, for leave
to appeal to the Umpire, and in each case was
notified by letter that the Chairman did not
approve the application for leave to appeal. These
actions resulted from the refusal of leave to appeal.
Section 95 of the Unemployment Insurance Act,
1971, S.C. 1970-71-72, c. 48 reads as follows:
95. An appeal lies to an umpire in the manner prescribed
from any decision of a board of referees as follows:
(a) at the instance of the Commission, in any case;
(b) subject to section 97, at the instance of an association of
workers of which the claimant is a member or an association
of employers of which an employer of the claimant is a
member, in any case; or
(c) at the instance of the claimant or an employer of the
claimant
(i) without leave, in any case in which the decision of the
board of referees is not unanimous, and
(ii) with the leave of the chairman of the board of
referees, in any other case.
In neither of these cases was the plaintiff a
member of a trade union or association of workers
at the relevant time, so section 95(b) has no
application to them. Any appeal under the section
must therefore be brought by the plaintiff (claim-
ant) under section 95(c). If the decisions of the
Boards of Referees had not been unanimous there
would have been no problem, as the claimant
would have had a clear right to appeal under
section 95(c)(i). Since the decision was unanimous
in each case, the applicable provision is section
95(c)(ii), which authorizes an appeal at the
instance of the claimant with the leave of the
chairman of the board of referees. This consent
was refused.
It is obvious that if section 95(c)(ii) is valid and
binding on the claimants these appeals must fail.
The appeal in each case attacks the validity and
operative effect of this subparagraph.
In passing I note an expression in paragraph (b)
of the prayer for relief in the statement of claim in
each case that is confusing. Each of these para
graphs speaks of section 95 "providing that the
Chairman must grant leave to appeal." The sec
tion of course, does not, in subparagraph (c)(ii),
require the chairman to do anything. It simply
authorizes an appeal "with the leave of the chair
man". So far as the section goes the chairman may
grant leave or he may refuse to do so. Having
regard to the statement of claim as a whole it is
readily seen that the draftsman did not intend the
words quoted supra from the prayer for relief to be
accorded their most obvious direct meaning, but
rather that obtaining the chairman's "leave" was a
condition precedent to the claimant having a right
of appeal. Nevertheless, taken by themselves they
are confusing in that they seem to suggest a mis
understanding by the draftsman of the meaning of
subparagraph (c)(ii).
In each of these two cases the statement of
claim asks for four declarations by the Court.
1. A declaration that section 95 of the Unemploy
ment Insurance Act, 1971, quoted supra, requiring
claimants who are not members of an association
of workers to obtain leave to appeal to the Umpire,
violates the Canadian Bill of Rights, S.C. 1960, c.
44 [R.S.C. 1970, Appendix III] in that
(a) it is discriminatory and deprives those
claimants of the right to equality before the law.
(b) it deprives those claimants of the right to a
fair hearing in accordance with the principles of
fundamental justice.
2. A declaration that the said section 95, which
provides that leave to appeal to the Umpire must
be obtained from the Chairman, who has himself
participated in the decision of the Board of
Referees from which the plaintiff (claimant) seeks
to appeal, violates the Canadian Bill of Rights
and/or the principles of natural justice in that it
deprives a claimant of the right to a fair hearing
for the determination of the claimant's rights and
obligations.
3. A declaration that the said section 95 shall be
construed and applied so that persons who are not
members of an association of workers shall not
require leave prior to bringing an appeal before the
Umpire.
4. A declaration that the plaintiff is entitled to
have his case heard on appeal before the Umpire.
I note here that the prayer for relief is somewhat
too broadly drawn. It is only where the decision of
the Board of Referees has been unanimous that
the section requires that the leave of the Chairman
to appeal to the Umpire must be given prior to an
appeal being made. In the argument of counsel for
the defendants this distinction has significance.
In each case the plaintiff asks for the costs of
the action.
The statement of defence in each case simply
asserts that the plaintiff is not entitled to the relief
sought and asks that the action be dismissed with
costs.
There being no dispute about facts the hearing
consisted of the arguments of counsel on the law.
The argument revolved around two main
circumstances:
1. The fact that the Chairman who refused leave
to appeal had been in each case a member and
Chairman of the Board of Referees which had
made the decision from which the plaintiff (claim-
ant) was asking leave to appeal. Did this circum
stance constitute bias in law on the part of the
Chairman such that his decision to refuse leave to
appeal should be reversed? There was no claim
that the Chairman was in fact actually biased
against the plaintiff (claimant);
2. Certain provisions of the Canadian Bill of
Rights. What effect did these provisions have on
the position of the plaintiff, particularly with
respect to making an appeal to the Umpire?
Counsel for the plaintiffs submitted with regard
to 1 that at common law this circumstance would
be held to constitute bias in law, because it would
indicate a real likelihood that actual bias might
exist. He cited R. v. Alberta Securities Commis
sion, Ex Parte Albrecht 36 D.L.R. (2d) 199 in
support of this position. He agreed, however, that
an exception to this rule existed where, by legisla-
tion, the chairman is authorized to make the deci
sion on an application for leave to appeal. For this
he cited Riley J. in the same case, at the bottom of
page 201. Section 95(c)(ii) gives such authoriza
tion to the chairman in the circumstances with
which we are concerned in these actions. In fact
section 96 makes it clear by giving him certain
directions, that the chairman's decision is not arbi
trary. It reads, in part:
96. (1) ... and an application for leave to appeal shall be
granted by the chairman of the board of referees if it appears to
him that there is a principle of importance involved in the case
or there are other special circumstances by reason of which
leave to appeal ought to be granted.
(2) Where the chairman of a board of referees grants leave
to appeal to an umpire from the decision of the board of
referees, the chairman of the board of referees shall include in
the record a statement of the grounds on which leave to appeal
is granted.
In my view the maxim expressio unius est
exclusio alterius is applicable to what is said in
section 96. It seems clear that Parliament's inten
tion in enacting this section was that the Chairman
should not grant the application for leave to appeal
unless, in his opinion, there was a principle of
importance involved in the case or there were other
special circumstances by reason of which leave to
appeal ought to be granted. In this connection see
the judgment of Marceau J., sitting as Umpire in
C.U.B. 4571, issued July 29, 1977, Pierre Bor-
deleau, appellant.
While the grounds on which the Chairman, in
these two cases, did not approve the applications
for leave to appeal to the Umpire are not before
the Court, there is no evidence and no submission
in argument that the Chairman was not acting in
accordance with the provisions of section 96.
My conclusion is that plaintiffs in these two
cases cannot succeed on the basis of bias in law on
the part of the Chairman against either of them in
deciding not to approve applications for leave to
appeal. I have read all the cases on the question of
bias that were cited to me by counsel. They con
firm me in my opinion just stated.
Determination of the effect of provisions of the
Canadian Bill of Rights on the position of the
plaintiffs in these two cases is more complex.
The submissions made by counsel for the plain
tiffs rested upon portions of the provisions of sec
tions 1 and 2 of the Canadian Bill of Rights. It
will be convenient to quote these provisions now:
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,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and
to the protection of the law;
Paragraphs (c),(d),(e) and (f) of section 1 were
not referred to.
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
Paragraphs (a),(b),(c),(d),(f) and (g) of section
2 were not referred to.
Counsel referred first to two passages in the
judgment of Laskin J., as he then was, in the
Supreme Court of Canada in the case of Curr v.
The Queen [1972] S.C.R. 889. At page 893
Laskin J. said:
In view of the course of the argument, I deem it prudent to
put at the forefront of these reasons two rather obvious proposi
tions; first, the Canadian Bill of Rights did not freeze the
federal statute book as of its effective date, which was August
10, 1960; and, second, federal law enacted after the date of the
Canadian Bill of Rights as well as pre-existing federal law may
be found to run foul of the prescriptions of the Canadian Bill of
Rights.
These two propositions are certainly true. The
first has been adopted in several decisions since the
Curr case and the second is expressly stated in
section 5(2) of the Canadian Bill of Rights.
At page 896 Laskin J. referring to section 1(a)
and (b), said:
In considering the reach of s. 1(a) and s. 1(b), and, indeed, of
s. 1 as a whole, I would observe, first, that the section is given
its controlling force over federal law by its referential incorpo
ration into s. 2; and, second, that I do not read it as making the
existence of any of the forms of prohibited discrimination a sine
qua non of its operation. Rather, the prohibited discrimination
is an additional lever to which federal legislation must respond.
Putting the matter another way, federal legislation which does
not offend s. 1 in respect of any of the prohibited kinds of
discrimination may nonetheless be offensive to s. 1 if it is
violative of what is specified in any of the clauses (a) to (/) of s.
1. It is, a fortiori, offensive if there is discrimination by reason
of race so as to deny equality before the law. That is what this
Court decided in Regina v. Drybones and I need say no more on
this point.
Six of the other Supreme Court justices con
curred with Laskin J.'s reasons for judgment. Rit-
chie J., with whom Fauteux C.J.C. agreed, came
to the same conclusion as to the disposition of the
appeal, (it was dismissed unanimously), but for
other reasons.
Applying to the two cases before me the opinion
expressed by Laskin J. in the foregoing quotation I
note first that section 95 of the Unemployment
Insurance Act, 1971, does not discriminate against
anybody by reason of race, national origin, colour,
religion or sex. What the plaintiffs complain of is
that the section discriminates against both of them
by reason of the fact that neither of them is a
member of an association of workers, which is not
one of the forms of discrimination mentioned in
the opening lines of section 1 of the Canadian Bill
of Rights.
The claim of the plaintiffs does not, however,
stop with an assertion of discrimination, but goes
on to state that as a result of that discrimination
each of the plaintiffs has been deprived of the right
to equality before the law, contrary to section 1(b)
of the Canadian Bill of Rights. It further claims
that by section 95 of the Unemployment Insurance
Act, 1971, each of the plaintiffs has been deprived
of the right to a fair hearing in accordance with
the principles of fundamental justice for the deter
mination of his (her) rights and obligations, con
trary to section 2(e) of the Canadian Bill of
Rights. There are therefore two questions that
remain to be answered:
1. Can section 95 of the Unemployment Insurance
Act, 1971 be construed and applied in the circum
stances of these two cases without abrogating,
abridging or infringing the right of each of the
plaintiffs to equality before the law under section
1(b) of the Canadian Bill of Rights?
2. Can the said section 95 be construed and
applied in the circumstances of these two cases
without depriving each of them of the right to a
fair hearing in accordance with the principles of
fundamental justice for the determination of his
(her) rights and obligations, contrary to section
2(e) of the Canadian Bill of Rights?
Counsel for the plaintiffs submits that both of
these questions should be answered in the negative.
With regard to question 1, his submission is that
under section 95 the Commission, an association of
workers of which the claimant (plaintiff) is a
member, and an association of employers of which
an employer of the claimant (plaintiff) is a
member all have a right of appeal to the umpire
from a decision of a board of referees in any case,
regardless of whether the board's decision was
unanimous, but that a claimant who is not a
member of an association of workers has no right
of appeal to the Umpire if the decision of the
board was unanimous, unless the chairman of the
board grants leave to appeal, and that the leave to
appeal may only be granted if there appears to the
chairman to be a principle of importance involved
or other special circumstances by reason of which
leave to appeal ought to be granted. In his view
this clearly puts a claimant who is in the situation
of the plaintiffs in these two cases in a position of
inequality and inferiority before the law relative to
that of the other parties mentioned. Employers
who are non members of an association of employ
ers are of course in the same position of inequality
before the law.
Counsel submits that it is the non-union
member who is most in need of the protection
afforded by appeal. He has no union to support
him and thus no experienced union representative
to speak for him before the Board of Referees.
Counsel also stated that one member of a Board of
Referees is a union representative. As a practical
matter this may well be commonly true, but it is
not necessarily so, as section 91 of the Unemploy
ment Insurance Act, 1971 simply enacts, in part:
91. (1) There shall be boards of referees, consisting of a
chairman and one or more members chosen from employers or
representatives of employers and an equal number of members
chosen from insured persons or representatives of insured
persons.
(3) Panels of employers and representatives of employers
and insured persons and representatives of insured persons shall
be established by the Commission, and the members of the
boards of referees shall be selected from those panels in the
manner prescribed.
It is clear that under section 91, one member of
a Board of Referees may be an insured person who
is not a union member or union representative.
What we are concerned with here is the right of an
individual employee to appeal to the Umpire from
the decision of a Board of Referees and the only
circumstance in which the right of an employee to
make such an appeal is in any doubt is where the
Board's decision has been unanimous. I see no
ground for assuming that an insured person who is
not a union member or union representative would
be more likely, as a member of a Board of
Referees, to dissent from the decision of the other
two members of the Board, thereby ensuring that
there would be no doubt about the claimant's right
of appeal to the Umpire, than would a union
member or union representative sitting on a Board
of Referees. Consequently I fail to comprehend
how the two claimants (plaintiffs) would be placed
at a disadvantage with respect to the right of
appeal by reason of one member of each of the
Boards from whose decisions they seek to appeal,
being a union representative rather than an
insured person who is not a union representative.
The words "equality before the law" in section
1(b) of the Canadian Bill of Rights as well as the
words of section 1(a), the due process clause, have
been discussed by Canadian Courts, including the
Supreme Court, on a number of occasions. In the
Curr case (supra), Laskin J., referring to section
1(a) said, at pages 899-900:
Assuming that "except by due process of law" provides a means
of controlling substantive federal legislation—a point that did
not directly arise in Regina v. Drybones—compelling reasons
ought to be advanced to justify the Court in this case to employ
a statutory (as contrasted with a constitutional) jurisdiction to
deny operative effect to a substantive measure duly enacted by
a Parliament constitutionally competent to do so, and exercis
ing its powers in accordance with the tenets of responsible
government, which underlie the discharge of legislative author
ity under the British North America Act. Those reasons must
relate to objective and manageable standards by which a Court
should be guided if scope is to be found in s. 1(a) due process to
silence otherwise competent federal legislation.
In my view these words are equally applicable in
considering section 1(b). Nor do I consider them
any the less applicable because of the fact that the
Curr case was one of a criminal charge for refus
ing to give a breath sample to assist in determining
the alcoholic content thereof, while ours arises
from a refusal to approve an appeal in a civil
matter.
In The Queen v. Burnshine [1975] 1 S.C.R. 693,
section 150 of the Prisons and Reformatories Act,
R.S.C. 1970, c. P-21 was under attack. The section
provided for a system of definite and indetermi
nate sentences for young offenders in British
Columbia only. It was possible for the indetermi
nate term to be greater than the maximum pre
scribed for the particular offence. It was claimed
that the legislation was discriminatory as it applied
only to young offenders and to one province only.
It was also claimed that it involved inequality
before the law, as the total term of incarceration
imposed on a young offender might exceed the
maximum that could be imposed upon any other
class of offender for the same offence. Martland
J., in giving the reasons for the decision of the
majority of the Supreme Court, considered at
some length the question of equality before the
law. He pointed out [at page 705] that the
Canadian Bill of Rights did not purport to create
new rights. "By its express wording it declared and
continued existing rights and freedoms" and "It
was those existing rights and freedoms which were
not to be infringed by any federal statute".
Referring to The Queen v. Drybones [1970]
S.C.R. 282 which was an appeal by an Indian
from a conviction of being intoxicated off a
reserve, contrary to section 94(b) of the Indian
Act, and which he said was the only case "to date
in which this Court has held a section of a federal
statute to be inoperative because it infringed the
Bill of Rights," Martland J. indicated the limited
scope of that judgment by quoting the following
passage found at page 298 from the judgment of
Ritchie J., who delivered the majority reasons in
that case:
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; in my opinion the same considerations do not by any
means apply to all the provisions of the Indian Act.
Martland J. then said, at page 707:
The legislative purpose of s. 150 was not to impose harsher
punishment upon offenders in British Columbia in a particular
age group than upon others. The purpose of the indeterminate
sentence was to seek to reform and benefit persons within the
younger age group. It was made applicable in British Columbia
because that Province was equipped with the necessary institu
tions and staff for that purpose.
He concluded by saying at pages 707-708:
In my opinion, in order to succeed in the present case, it
would be necessary for the respondent, at least, to satisfy this
Court that, in enacting s. 150, Parliament was not seeking to
achieve a valid federal objective. This was not established or
sought to be established.
In Prata v. Minister of Manpower and Immi
gration [1976] 1 S.C.R. 376, a deportation order
had been made against the appellant. He appealed
to the Immigration Appeal Board under section 15
of the Immigration Appeal Board Act, which gave
the Board discretionary power, in certain circum
stances, to order that a deportation order be stayed
or quashed. Unfortunately for him section 21 of
the Act provided that the Board could not exercise
this discretionary power if a certificate signed by
the Minister and the Solicitor General was filed
with the Board stating that in their opinion, based
upon security or criminal intelligence reports
received and considered by them, it would be
contrary to the national interest for the Board to
take such action. Such a certificate was filed. The
Board held that by section 21 it had been stripped
of jurisdiction to consider his appeal under
section 15.
The case ended in the Supreme Court of
Canada, where one of the appellant's submissions
was that the Canadian Bill of Rights prevented
section 21 from being applied to preclude Prata
from seeking to obtain the exercise by the Board of
its discretionary powers under section 15. It was
contended that the application of section 21
deprived the appellant of the right to "equality
before the law" declared by section 1(b) of the
Canadian Bill of Rights.
Martland J., delivering the unanimous judgment
of the Court, said, at page 382:
The purpose of enacting s. 21 is clear and it seeks to achieve a
valid federal objective. This Court has held that s. 1(b) of the
Canadian Bill of Rights does not require that all federal
statutes must apply to all individuals in the same manner.
Legislation dealing with a particular class of people is valid if it
is enacted for the purpose of achieving a valid federal objective
(R. v. Burnshine) ((1974), 44 D.L.R. (3d) 584).
The appeal was dismissed.
The most recent Supreme Court decision of
which I am aware, in which reference was made to
a "valid federal purpose" resulting in a federal
statute not being violative of the Canadian Bill of
Rights, is Bliss v. Attorney General of Canada
[1979] 1 S.C.R. 183. In that case the provisions
under review were sections 30(1) and 46 of the
Unemployment Insurance Act, 1971. Section 30 of
that Act provides for pregnant women being en
titled to insurance benefits during a maximum
period of 15 weeks commencing eight weeks before
the week in which her confinement is expected, if
she has had 10 or more weeks of insurable employ
ment in the 20 weeks that immediately precede the
30th week before her expected date of confine
ment. No further conditions need to be complied
with. The basic qualifications for receiving benefits
for all other persons are 8 weeks of insurable
employment in the applicant's qualifying period,
an interruption of earnings, and not being disquali
fied under any of a number of conditions, of which
two had some relevance to that case, viz.: failure to
prove that he was either
a) capable of and available for work and unable to
obtain suitable employment, or
b) incapable of work by reason of any prescribed
illness, injury or quarantine.
Section 46 provides that, subject to section 30, a
pregnant woman is not entitled to benefit during
the said period.
In the Bliss case the claimant could not qualify
for pregnancy benefit because she had not had 10
weeks of insurable employment during the period
prescribed by section 30, and because of section 46
she could not qualify under the general basic
qualifications. Apart from section 46 she could
have so qualified.
The case went to the Supreme Court, where
Ritchie J. delivered the unanimous judgment of
the Court. The contention of the appellant was
that section 46 denied "equality before the law"
for the period specified in section 30 to pregnant
and childbearing women who failed to fulfill the
conditions required by section 30(1) because it
denied them the benefits available to all other
claimants, both male and female, who had 8 weeks
of insurable employment and were capable of and
available for work.
At page 191 Ritchie J. said, in part:
As I have indicated s. 46 constitutes a limitation on the
entitlement to benefits of a specific group of individuals and as
such was part of a valid federal scheme.
Continuing, he drew a wide distinction between
legislation like that in The Queen v. Drybones and
the case before him, saying [at pages 191-192]:
The one case involves the imposition of a penalty on a racial
group to which other citizens are not subjected; the other
involves a definition of the qualifications required for entitle
ment to benefits, and in my view the enforcement of the
limitation provided by s. 46 does not involve denial of equality
of treatment in the administration and enforcement of the law
before the ordinary courts of the land as was the case in
Drybones.
In the light of the foregoing judgments I now
consider whether in the present case Parliament
was seeking to achieve a valid federal purpose.
Plaintiffs' counsel contended that there is no
ground for argument that section 95(c)(ii) of the
Unemployment Insurance Act, 1971 is based on a
valid legal objective, but he advanced little by way
of argument to support that contention.
Counsel for the defendants sought to draw an
analogy between this case and the Bliss case,
supra referring to page 186 of the Supreme Court
judgment, where Ritchie J. said:
It was, in my view, necessary for the effective exercise of the
authority conferred by s. 91(2A) of the British North America
Act that Parliament should prescribe conditions of entitlement
to the benefits for which the Act provides. The establishment of
such conditions was an integral part of a legislative scheme
enacted by Parliament for a valid federal purpose in the
discharge of the constitutional authority entrusted to it under s.
91(2A) and the fact that this involved treating claimants who
fulfil the conditions differently from those who do not, cannot,
in my opinion, be said to invalidate such legislation.
Counsel then submitted that the federal purpose
was to control the number of appeals that might be
brought before the Umpire. He said that in condi
tions of high unemployment such as have existed
in Canada for a period of years the Commission
was concerned about its heavy responsibility. This
submission means, as I see it, that in conditions of
high unemployment there is a danger that the
Umpires might be overwhelmed with the number
of appeals they would have to deal with and that
this danger justified limiting the circumstances in
which appeals may be made to the Umpire.
I have left to the end of this discussion of
"equality before the law" the consideration of
what is meant by that term as it is used in section
1(b) of the Canadian Bill of Rights, feeling that
after some review of the way in which the courts
have dealt with it such a discussion might more
readily point to the right conclusion about the
application of section 1(b) to this case.
In Attorney General of Canada v. Lave11 [1974]
S.C.R. 1349 in the Supreme Court, Ritchie J.,
with whom Fauteux C.J.C., Martland and Judson
JJ. concurred, expressed very definite views about
the meaning of "equality before the law". The case
was that of an Indian woman who married a
non-Indian, with the result that her name was
deleted by the Registrar from the Indian Register
pursuant to section 12(1)(b) of the Indian Act,
R.S.C. 1970, c. I-6.
Ritchie J. began by stating that in his opinion
the words in question, as they occur in section
1(b), do not have the same meaning as that which
the Courts of the United States have interpreted
them to have in the 14th Amendment of the U.S.
Constitution. He adopted Professor Dicey's view
that "equality before the law" was one of three
meanings of the great principle of the English
Constitution, viz.: "The Rule of Law".
At pages 1366-67, he said, in part:
... "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 "equality before the law" as employed in s. 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". (Emphasis
added.)
I note here that Ritchie J. in giving the forego
ing opinion, was not speaking for the majority of
the Court. Four judges dissented, and Pigeon J.,
while agreeing with Ritchie J. in the result, did not
express an opinion on this point.
In the Bliss case (supra), when it was before the
Federal Court of Appeal, where it is reported sub
nom. Attorney General of Canada v. Bliss [1978]
1 F.C. 208 Pratte J., delivering the judgment of
the Court, gave expression to a wider meaning for
the phrase "equality before the law" than that
adopted by Ritchie J. in the Lavell case. At page
214 he said:
... 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 differ
ently, the distinctions may be either relevant or irrelevant. The
distinction is relevant when there is a logical connection be
tween 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, counsel 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
reason 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.
Applying his wider definition, Pratte J. came to
the conclusion that Parliament's decision to make
the employment qualification period for pregnancy
benefits longer than the basic qualification period
required in other cases (10 weeks instead of 8)
could not be said to be founded on irrelevant
considerations. Consequently the legislation adopt
ed to implement that decision was "enacted for the
purpose of achieving a valid federal objective".
When the Bliss case came before the Supreme
Court, Ritchie J., as we have seen in the paragraph
quoted supra, from page 191, applying the defini
tion he had pronounced in the Lavell case, held
that enforcement of the limitations provided by
section 46 of the Unemployment Insurance Act,
1971 did not involve denial of equality of treat
ment in the administration and enforcement of the
law before the ordinary courts of the land. He then
referred to Pratte J.'s definition and, in effect,
applying it, said, at page 193:
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 by Parliament by s. 91(2A) of the
British North America Act.
With the foregoing judicial definitions of
"equality before the law", and discussions of its
application and of "valid federal objective" in
mind, I return to a final consideration of their
application to the two cases that are before me.
In my view, Parliament may reasonably have
thought that there would be a much greater
number of appeals if every individual employee
and employer had a right of appeal to the Umpire
unrestricted by a requirement that leave to appeal
be obtained from the chairman of the board of
referees in cases where the board's decision was
unanimous, than would be the case under a provi
sion requiring such leave. Parliament may well
have believed the right to appeal without leave in
such cases would lead to a great many appeals that
had no hope of success, with the result that expedi
tious disposition of appeals would or might be
thwarted. That claims for benefits under the Act,
both at first instance and on appeal should be
disposed of expeditiously is important to achieving
the purpose of the legislation.
On this basis it may be concluded that section
95, enacted in pursuance of its constitutional re
sponsibility for unemployment insurance under
section 91(2A) of The British North America Act,
1867, had a valid federal purpose. In reaching this
conclusion I am adopting the definition of "equal-
ity before the law" enunciated by Ritchie J. in the
Lavell case and in the unanimous decision of the
Supreme Court in the Bliss case (supra).
My final conclusion is that section 95 of the
Unemployment Insurance Act, 1971, more particu
larly subparagraph (c)(ii) thereof is applicable in
the circumstances of these two cases and does not
abrogate, abridge or infringe the right to equality
before the law declared by section 1(b) of the
Canadian Bill of Rights.
The question whether section 95 can be con
strued and applied in the circumstances of these
two cases without depriving each of them of the
right to a fair hearing in accordance with the
principles of fundamental justice for the determi
nation of his (her) rights and obligations, contrary
to section 2(e) of the Canadian Bill of Rights can,
in my opinion, be answered much more briefly
than the question about equality before the law.
These two plaintiffs have each had an appeal
hearing before the Board of Referees. There is no
suggestion that those hearings were not fair hear
ings. What is being claimed is that the failure of
the Chairman of the Board to grant leave to
appeal has deprived each of the plaintiffs of the
right to a fair hearing at an appeal to the Umpire.
In view of my finding that section 95 was enact
ed for a valid federal purpose and pursuant to its
constitutional power under section 91(2A) of The
B.N.A. Act to enact legislation in relation to
unemployment insurance and that this finding
included the limitation on appeals contained in
subparagraph (c)(ii) of section 95, I have difficul
ty in agreeing with this claim. There is nothing
before me that suggests that the Chairman of
either Board did not act properly and in accord
ance with the provisions of section 95 and section
96. I therefore assume that neither Chairman
formed an opinion that the case before him
involved an important principle or other special
circumstances by reason of which leave to appeal
ought to be granted. In these circumstances I find
it difficult to conceive that the rules of natural
justice concerning a fair hearing require that a
person who has had a fair hearing at one appeal
(where his appeal was unanimously dismissed)
should have an inherent right to a further appeal.
From a practical point of view, my limited
experience with cases of this kind, together with
my reading of many decisions of Umpires, and
more especially the tripartite composition of
boards of referees, lead me to believe that relative
ly very few meritorious appeals to the Board of
Referees result in unanimous decisions adverse to
the claimant and that most of those are open to
appeal under the important principle or other spe
cial circumstances rule in section 96.
In my view this claim must also be rejected.,
In the final result both appeals will be dismissed.
There will be no order as to costs.
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.