A-19-82
Attorney General of Canada (Applicant)
v.
Teresa Stevenson (Respondent)
Court of Appeal, Thurlow C.J., Le Damn J. and
Clement D.J.-Toronto, January 17; Ottawa,
March 7, 1983.
Unemployment insurance - Maternity benefits - Regular
benefit period established for respondent on September 13,
1979 - Respondent collecting until commencement of new job
on April 29, 1980 - Baby expected May 23, 1980; birth
occurring May 25 - Respondent not entitled to benefits for 8
weeks preceding week of expected confinement or for 6 weeks
following week of birth - Analysis of Ritchie J. in Bliss still
valid - "Proves her pregnancy" in s. 30(1) meaning claims
because unemployed and pregnant - Unnecessary to be cap
able of and available for work - Respondent having 10 weeks'
employment or benefit receipt as per s. 30(1) unlike Bliss
Eligibility period under s. 30(2)(a) and (b) not necessarily same
as s. 46 period - Eligibility period begins with actual con
finement week if woman works until birth - Respondent's
eligibility period commencing 8 weeks before expected con
finement week - Pre-birth work stint does not extend eligi
bility period since end-point fixed by s. 30(2)(b)(ii) - No
benefits for particular week in eligibility period unless "one of
the first fifteen weeks for which benefits are claimed and
payable in her benefit period" - "Her benefit period" refer
ring to period defined by ss. 2, 19, 20 - S. 30(2)(b)(ii)
referring to same - Respondent having already collected for
15 weeks prior to eligibility period - Decision set aside,
matter referred back to Umpire - Unemployment Insurance
Act, 1971, S.C. 1970-71-72, c. 48, ss. 2 (as am. by S.C.
1976-77, c. 54, s. 26(1),(6)), 16(1)(a), 17, 19 (as am. by S.C.
1976-77, c. 54, s. 32), 20 (as am. by S.C. 1976-77, c. 54, s. 33),
25, 30(1) (as am. by S.C. 1976-77, c. 54, s. 38(1)), (2) (as am.
by S.C. 1974-75-76, c. 66, s. 22 and by S.C. 1976-77, c. 54, s.
38(2)), 32 (as am. by S.C. 1976-77, c. 54, s. 40), 46 -
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C. 1970,
Appendix III, s. 1(b)J - Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
The respondent was employed for 32 weeks, from
November 6, 1978, to June 15, 1979, before leaving her job.
She then drew unemployment insurance benefits under a ben
efit period relating to previous employment, until that period
expired. On September 13, 1979, the respondent filed a new
claim, and a new benefit period was established for her, on the
basis of the 32 weeks of work. With one break of two weeks
during which she was employed, the respondent collected ben
efits under this new period until April 29, 1980, on which date
she began working at a new job. Her baby was expected on
May 23, 1980, and was actually born on May 25. The 8-week
period preceding the week of the respondent's expected confine
ment thus began on March 23, 1980. When it was discovered
that she had collected benefits for several weeks in that 8-week
period, she was notified: that "maternity benefits are only paid
in the first 15 weeks for which benefits are claimed and
payable"; that, prior to March 23, she had already collected
benefits for 15 weeks (under the claim filed on September 13,
1979); and that she was therefore ineligible for benefits in the
8-week period beginning March 23, and would have to repay
the amounts received in respect of that period. The Umpire
overturned the decision of the Board of Referees, which had
held that the respondent was not entitled to benefits for the
period beginning 8 weeks before the expected date of confine
ment and ending 6 weeks after the week in which the baby was
born.
Held, the respondent was not entitled to benefits in this
period ("the section 46 period"), and the matter is referred
back to the Umpire for determination on that basis. The
analysis of conditions governing qualification and disentitle-
ment made by Ritchie J. in the Bliss case is still valid. If the
woman is one "who proves her pregnancy" as per subsection
30(1)—that is, who claims benefits because she is unemployed
and pregnant—then she need not be capable of and available
for work in order to be entitled to benefits. However, it is still
the case that, by virtue of section 46, no benefits may be
collected under the Act in respect of the section 46 period,
except as provided by section 30. The instant case is distin
guishable from Bliss in that the respondent herein did have the
10 weeks of work, or of benefit receipt, required by subsection
30(1). Consequently, this case, unlike Bliss, does not turn on
the requirements for qualification contained in subsection (1)
of section 30, but rather on the terms of subsection (2), which
sets out the period for which benefits are payable to a qualified
claimant. This eligibility period is not necessarily the same as
the section 46 period. The beginning and end of the eligibility
period are determined, prima facie, under paragraphs 30(2)(a)
and (b), respectively. Pursuant to paragraph (a), if the woman
continues to work until the baby is born, the eligibility period
begins in the week of the actual confinement. However, as the
respondent in this case was unemployed at the beginning of the
8-week period preceding the week in which her confinement
was expected, the alternative rule—subparagraph (a)(i)—gov-
erns, so that, other things being equal, the respondent's period
of eligibility would have commenced with the first of those 8
weeks. It also follows that the date specified in subparagraph
(b)(ii) was earlier than that stated in subparagraph (b)(i), so
that the end-point of the eligibility period would be fixed at 14
weeks after the first of those 8 weeks. As a consequence, the
stint of work performed by the respondent at her new job
shortly before the baby's birth is not relevant. It cannot afford
her any extension of the eligibility period. The larger problem
arises, though, with regard to the closing lines of subsection
30(2), which state that, even if a particular week falls within
the eligibility period, benefits may not be claimed for it unless
it "is one of the first fifteen weeks for which benefits are
claimed and payable in her benefit period." (Emphasis added.)
Arguably, the expression "her benefit period" might refer to
the eligibility period determined under paragraphs 30(2)(a)
and (b). However, a general definition of "benefit period" is set
forth in section 2 and (by reference) sections 19 and 20; and a
consideration of the history of subsection 30(2), among other
factors, leads to the conclusion that it is the benefit period as
defined in these provisions to which the closing lines of subsec
tion 30(2), as well as the words of subparagraph 30(2)(b)(ii),
refers. Accordingly, in this case "her benefit period" is the
benefit period which began on September 13, 1979. By the time
the respondent arrived at the 8-week stretch preceding the week
in which her confinement was expected, she had already col
lected for 15 weeks (and more) of this benefit period. There
fore, none of the weeks in the eligibility period circumscribed
by paragraphs 30(2)(a) and (b) was one of the "first fifteen
weeks" of this benefit period, and none of the weeks is one for
which the respondent was entitled to collect under section 30.
CASE JUDICIALLY CONSIDERED
DISTINGUISHED:
Bliss v. The Attorney General of Canada, [1979] 1
S.C.R. 183.
REFERRED TO:
McPherson v. Attorney General of Canada, [1973] F.C.
511 (C.A.).
COUNSEL:
Marlene Thomas for applicant.
No one appeared for respondent.
SOLICITOR:
Deputy Attorney General of Canada for
applicant.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] to review and set aside the
decision of an Umpire under the Unemployment
Insurance Act, 1971 [S.C. 1970-71-72, c. 48]
which allowed the respondent's appeal from the
decision of a Board of Referees. The Board's deci
sion had held the respondent not entitled to unem
ployment insurance benefit for the period com
mencing eight weeks before the week in which her
confinement was expected, and ending six weeks
after the week in which her baby was born.
The respondent had been employed for a period
of some 32 weeks from November 6, 1978, to June
15, 1979, when she left her employment, married
and moved to another city to be with her husband.
There she sought employment and, in the mean
time, drew unemployment insurance benefits
under an earlier benefit period until it ran out. On
September 13, 1979, she filed a new claim based
on the employment mentioned and, except for a
two-week period during which she was employed,
received benefit until April 29, 1980, when she
began working at the local unemployment insur
ance office. Her baby was expected May 23, 1980,
and was in fact born on May 25, 1980.
Some months earlier, after being turned down
several times by prospective employers because she
was pregnant, she had enquired at the unemploy
ment insurance office about maternity benefit. She
appears to have been misinformed on the subject
by the clerk to whom she spoke. When she
enquired again on starting to work on April 29, it
was discovered that she had drawn benefit for
several weeks in the eight-week period preceding
the expected date of her confinement. She received
a notice saying:
... you are not entitled to receive maternity benefits under
Section [sic] 30(2) and 46 of the Unemployment Insurance Act
as maternity benefits are only paid in the first 15 weeks for
which benefits are claimed and payable. As you have collected
the first 15 weeks of benefits, benefit is suspended from 23
March 1980. You may be eligible for regular Unemployment
Insurance benefits after your child is born.
The respondent was also notified that she would
be required to repay the amounts she had received
for weeks after March 23, 1980.
On appeal, the decision of the insurance officer
was confirmed by the Board of Referees, and was
subsequently reversed by the Umpire in the deci
sion which is attacked in this application.
Before setting out the statutory provisions
referred to by the insurance officer, on the inter
pretation of which this case turns, it will be useful
to recall the statutory setting in which they oper
ate. Entitlement to unemployment insurance ben
efit is provided for in subsection 17(1). It reads:
17. (1) Unemployment insurance benefits are payable as
provided in this Part to an insured person who qualifies to
receive such benefits.
With respect to the qualifications required,
though the provisions have been amended since the
Bliss case,' the analysis made by Ritchie J. in that
case is still applicable. I pause to note that the
present case, as I see it, does not turn on the same
qualification requirement of ten weeks' insurable
employment in the twenty weeks between the thir
tieth and fiftieth week immediately preceding the
expected date of confinement, a qualification
which the respondent appears to have met, but
turns on wording of subsection 30(2) which has
been amended since the Bliss case arose. The
particular wording will be considered later in these
reasons.
In the Bliss case, Ritchie J. said [at pages
186-187]:
The basic qualifications for the receipt of benefits are defined
in s. 17 of the Act as follows:
17. (2) An insured person qualifies to receive benefits
under this Act if he
(a) has had eight or more weeks of insurable employment
in his qualifying period, and
(b) has had an interruption of earnings from employment.
A considerable number of conditions of disentitlement are
engrafted on this broad base, the most all encompassing of
which is found in s. 25 which provides as follows:
1 Bliss v. The Attorney General of Canada, [1979] 1 S.C.R.
183.
25. A claimant is not entitled to be paid benefit for any
working day in an initial 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 any prescribed illness,
injury or quarantine on that day.
Other restrictions on entitlement to benefits are enumerated
in s. 16(1)(a) where the word "disentitled" is defined as
follows:
16. (a) "disentitled" means to be disentitled under sections
[sic] 23, 25, 29, 33, 36, 44, 45, 46 or 54 or under a
regulation;
The section forming the subject of this appeal is s. 46 and I
think that its meaning and purpose can best be appreciated by
considering it in conjunction with s. 30. These two sections are
concerned with the entitlement of women to benefits during a
specified part of the period of pregnancy and childbirth and it
must be remembered that prior to the 1971 revision of the Act
there was no provision made for any benefits being payable to
such women who were not capable of and available for work
during that period although pregnancy and childbirth did not
exclude a woman from entitlement to the regular benefits for so
long as she continued to be capable of and available for work
within the meaning of s. 25.
After setting out sections 30 and 46, the learned
Judge continued [at pages 188-189]:
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.
Ritchie J. then dealt with the point on the
Canadian Bill of Rights [R.S.C. 1970, Appendix
III] and in the course of doing so said [at pages
190 and 1941:
As I have indicated, s. 30 and s. 46 constitute a complete
code dealing exclusively with the entitlement of women to
unemployment insurance benefits during the specified part of
the period of pregnancy and childbirth; these provisions form
an integral part of a legislative scheme enacted for valid federal
objectives and they are concerned with conditions from which
men are excluded.
To summarize all the above, I am of opinion that s. 46 forms
an integral part of a valid scheme of legislation enacted by
Parliament in discharge of its legislative authority under the
British North America Act, and that the limitation on entitle
ment to benefits for which the section provides is to be read in
light of the additional benefits provided by the scheme as a
whole and specifically by the provisions of s. 30 of the Act.
When the present case arose, subsections 30(1)
and (2) [as am. by S.C. 1974-75-76, c. 66, s. 22;
1976-77, c. 54, s. 38] and section 46 read 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 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.
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.
On the facts of the present case it appears to
me, as I have already indicated, that the respond
ent had the necessary ten weeks of employment or
weeks of benefit, in the twenty weeks between the
thirtieth and fiftieth weeks immediately preceding
her expected date of confinement, and can thus
satisfy that qualification requirement of subsection
30(1). That distinguishes her case from the Bliss
case. But even though qualified under subsection
30(1), she is entitled, in the period to which section
46 applies, only to such benefits as are provided by
subsection 30(2).
It will be observed that the period for which
benefit is payable under subsection 30(2) is not
necessarily the period mentioned in section 46. A
woman who proves her pregnancy, that is to say,
as I interpret subsection 30(1), who claims benefit
because she is unemployed and is pregnant, is
entitled to benefit, notwithstanding that she is not
capable of and available for work, for each week of
unemployment in the period which begins either
(1) eight weeks before the expected week of her
confinement, or (2) the week in which her confine
ment occurs, whichever is the earlier. If the
woman continues to work until the baby is born,
the beginning of the period is thus the week in
which the birth occurs. As the respondent was
unemployed when the eight-week period began,
the eighth week is thus in her case the earlier
week, and it is the earliest week for which she
might have been qualified for benefits under
section 30. This, as it seems to me, also serves to
limit the application of paragraph (b) in her case
to the period referred to in subparagraph (b)(ii),
that is to say, fourteen weeks after the eighth week
referred to in paragraph (a), thus making a total
of fifteen weeks.
Had she not been unemployed when the eighth
week began, she might have had the qualification
of subparagraph (b)(i) for benefit under section 30
for a longer period than six weeks after the week
of her child's birth, as she was in fact employed for
a brief period shortly before her baby was born.
However, as I see it, the combined effect of section
30 and section 46 is to make the fact of that
employment in the period to which section 46
refers irrelevant to her claim for benefit in that
period.
The difficulty with her claim for benefit for the
eight weeks prior to her expected date of confine
ment and the six weeks following the week of the
birth of her child arises not on the wording of
paragraphs (a) and (b) of subsection 30(2), but on
the wording which follows paragraph 30(2)(b),
that is to say, the wording:
... if such a week of unemployment is one of the first fifteen
weeks for which benefits are claimed and payable in her benefit
period.
In particular, the problem lies in determining what
is meant by "her benefit period" in that part of the
subsection.
The expression "benefit period" is defined in
section 2 of the Act [as am. by S.C. 1976-77, c.
54, subs. 26(1)] as meaning the period described in
sections 19 and 20. Section 19 [as am. by S.C.
1976-77, c. 54, s. 32] and the relevant parts of
section 20 [as am. by S.C. 1976-77, c. 54, s. 33]
provide:
Benefit Period
19. When an insured person who qualifies under section 17
makes an initial claim for benefit, a benefit period shall be
established for him and thereupon benefit is payable to him in
accordance with this Part for each week of unemployment that
falls in the benefit period.
20. (1) A benefit period begins on the Sunday of the week in
which
(a) the interruption of earnings occurs, or
(b) the initial claim for benefit is made,
whichever is the later.
(2) Subject to subsections (7) to (9) and sections 37 to 39,
the length of a benefit period is fifty-two weeks.
(3) A benefit period shall not be established for the claimant
if a prior benefit period has not terminated.
(6) A benefit period is terminated when
(a) no further benefit is payable to the claimant in his benefit
period,
(b) the benefit period would otherwise terminate under this
section,
(e) fifty weeks of benefit have been paid to the claimant in
his benefit period, or
(d) the claimant
(i) requests that a benefit period that has been established
for him be terminated,
(ii) makes a new initial claim for benefit, and
(iii) qualifies to receive benefit under this Act,
whichever first occurs.
These provisions undoubtedly define the benefit
period in which the respondent was receiving ben
efits prior to March 23, 1980, and if that is what is
referred to by the words "her benefit period" at
the end of subsection 30(2), it is clear that having
had a benefit period established as far back as
September 13, 1979, and having received benefit
for more than fifteen weeks in it, none of the eight
weeks immediately prior to the week in which her
confinement was expected was one of the first
fifteen weeks for which benefit was claimed and
payable in "her benefit period". The question
whether the expression "her benefit period" in
subsection 30(2) refers to her "benefit period" as
defined in section 2 is, however, obscured by the
presence in subparagraph 30(2)(b)(ii) of the
expression "any benefit period under this section".
On a first reading, what this suggests is that
there is a special benefit period under section 30,
and that the expression "her benefit period" at the
end of subsection 30(2) refers to the same period,
that is to say, the period to be ascertained by the
application of paragraphs (a) and (b) of the sub
section to the particular case so as to qualify the
woman for benefit under section 30 for that period
notwithstanding section 46 and notwithstanding
her inability to qualify under section 25 as being
capable of and available for work.
I do not think, however, that that interpretation
can prevail.
It may be noted first that if it were to prevail, it
would seem that the amendment of subsection
30(2) made by S.C. 1976-77, c. 54, subs. 38(2),
works a marked and, as it seems to me, unlikely
change in what had previously been the effect of
the subsection. In the subsection as enacted in
1971 by the Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48, and as amended by S.C.
1974-75-76, c. 66, s. 22, it was clear that what was
referred to was the [initial] benefit period defined
by section 2.
In the 1971 Act, subsection 30(2) read:
30....
(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.
Subsection 30(2) was repealed and substituted
for by the 1974-75-76 statute. The substituted
provision read:
30....
(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 under this section,
whichever is the earlier,
if such a week of unemployment falls in her initial benefit
period established pursuant to section 20 exclusive of any
re-established period under section 32.
The intent of these provisions seems to have
been to ensure that no more than fifteen weeks of
benefit should be paid under section 30 to a
woman in the period of her pregnancy and the
six-week period that followed the week of the birth
of her child.
The wording "benefit period established pursu
ant to section 20 exclusive of any re-established
period under section 32" served to identify the
"initial benefit period" which was defined and
provided for at that time [by para. 2(1)(j) of S.C.
1970-71-72, c. 48], as opposed to the re-estab
lished benefit period which was provided for under
section 32. That period was abolished in the
amendments made by S.C. 1976-77, c. 54 [s. 40].
In the same amendments, the expression "initial
benefit period" was also dropped [by subs. 26(6)],
and the definition of "benefit period" which has
already been cited appeared [in subs. 26(1)].
While the wording of the present subsection
30(2) contains no reference to section 20, it is
capable of being read as referring to the benefit
period defined by section 2, and it appears to me to
be more in harmony with the Act to read it that
way than to read section 30 as setting up a differ
ent "benefit period" from that defined by sections
2, 19 and 20.
It also appears to me that the word order of
subparagraph 30(2)(b)(ii) is somewhat convolut
ed. The subparagraph can and, as I think, should
be read not as referring to a "benefit period"
provided by section 30, but as saying:
... fourteen weeks after the first week for which benefits are
claimed and payable under this section [in any benefit period.]
I say this because the use in the subparagraph of
the expression "any benefit period", when, as it
seems to me, there could be only one benefit period
defined for the particular case by subsection 30(2),
indicates that what is referred to is not a "benefit
period" defined by the subsection but a benefit
period as defined in section 2.
Accordingly, my conclusion, which I reach with
some reluctance because it seems to me to result in
the respondent being disentitled to benefits, as was
the applicant in the McPherson case, 2 just when
they were most likely to be needed, is that the
words "her benefit period" at the end of subsection
30(2) refer to the respondent's benefit period
which began on September 13, 1979, and that
accordingly she was not entitled to benefit in the
period in question.
I would set aside the decision and refer the
matter back to the Umpire for determination of
the respondent's appeal on the basis that she was
not entitled to unemployment insurance benefit in
the period which began on March 23, 1980, and
ended six weeks after the week in which her baby
was born.
LE DAIN J.: I concur.
CLEMENT D.J.: I concur.
2 McPherson v. Attorney General of Canada, [1973] F.C.
511 (C.A.).
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.