T-2345-86
Shalom Schachter (Plaintiff)
v.
The Queen and Canada Employment and Immi
gration Commission (Defendants)
and
Women's Legal Education and Action Fund
(Intervenor)
INDEXED AS: SCHACHTER V. CANADA
Trial Division, Strayer J.—Toronto, April 12, 13,
14, 15, 18, 19, 20; Ottawa, June 7, 1988.
Constitutional law Charter of Rights — Equality rights
— Unemployment insurance — Applicable test under Charter
s. 15(1) Whether sufficient to establish effect of statutory
provision pejorative, negative and not trivial or whether neces
sary to establish distinction imposed by law unreasonable or
unfair — Both tests met herein — Discriminatory for natural
parents of newborn children not to have same right to benefits
as adoptive parents under Unemployment Insurance Act s. 32.
Unemployment insurance Discriminatory and contrary to
Charter s. 15 for natural parents of newborn children not to
have same right to benefits as adoptive parents under Unem
ployment Insurance Act s. 32 — Act s. 30 relates to childbear
ing while Act s. 32 relates to child rearing — Natural mother
should not be precluded from entitlement to child care benefits
by reason of having received pregnancy benefits within same
benefit period.
The plaintiffs wife gave birth to a baby on July 28, 1985 and
received maternity benefits from July 21 to November 1, 1985.
The plaintiff took three weeks of leave without pay following
the birth and on August 2, 1985, he applied for unemployment
benefits under sections 30 (maternity benefits) and 32 (adop-
tion benefits) of the Unemployment Insurance Act, 1971. His
application was denied and he appealed, first to a Board of
Referees and then to an Umpire, invoking the equality rights
guaranteed by section 15 of the Charter. The Board dismissed
the appeal and the Chief Umpire suggested that the issue
should go before the Federal Court.
This is an action for a declaration, in various forms, to the
effect that unemployment insurance benefits should be payable
to the natural fathers of newly-born children in respect of time
taken off work by fathers to look after such children after their
arrival at home, on the same basis as such benefits are now
payable to adoptive parents under section 32 of the Act. One
alternative form of relief seeks a declaration which would
ensure that such entitlement would not affect existing materni
ty benefits under section 30 and another would involve a
sharing between the natural parents of benefits equivalent to
those provided for adoptive parents under section 32. The
plaintiff also seeks an order that he is entitled to benefits with
respect to time spent by him with his newborn child in 1985.
Held, there should issue a declaration that the natural father
or mother of a newborn child should be entitled to benefits
under the Act on the same terms as adoptive parents, it being
specified that the natural mother should not be precluded from
entitlement to child care benefits by reason of having received
pregnancy benefits within the same benefit period. The plain
tiff's claim is referred back to the Commission for determina
tion on the basis that if the plaintiff otherwise meets the
requirements of the Act, he is entitled to benefits.
The issue of whether the validity of the distinction between
adoptive and natural parents should be tested under section 15
or section I of the Charter—a determination with important
practical and conceptual implications—does not arise herein as
the defendants have not invoked section I.
The plaintiff has the necessary standing. He has a direct
personal interest and followed the proper procedure. The deci
sion not to continue the umpire appeal was completely justified.
Where important constitutional issues are to be determined, an
action in this Court, with all its procedural means for defining
and elaborating the facts and legal issues, is much to be
preferred to an informal summary proceeding before an
umpire.
'The first test to be applied under section 15 is whether the
legislature has used an impermissible categorization in its
differential application of the law, so as in effect to treat
persons - Who are similarly situated in a dissimilar fashion. The
applicable factors to so determine are those recognized by the
Federal Court of Appeal in Smith, Kline & French Laborato
ries Ltd. Once "inequality" is found, it must be considered
whether this amounts to discrimination. Some courts—such as
the Federal Court of Appeal in Smith, Kline & French
Laboratories Ltd.—have applied a minimalist test for discrimi
nation: they are prepared to find that discrimination is estab
lished if the effect is "pejorative", if it is negative and not
trivial. Other courts—such as the British Columbia Court of
Appeal in Andrews v. Law Soc.—hold that to establish dis
crimination, a party must demonstrate that the distinction
imposed by law is "unreasonable or unfair". In the present
case, the plaintiff has met the more rigorous requirements of
the Andrews case.
There are distinctly different benefits available to adoptive
parents on one hand and natural parents on the other. Section
32 provides benefits for up to fifteen weeks to one or the other
of the eligible adoptive parents to stay home following the
placement of a child in their home. Section 30 allows no option
for the natural father to use or share such benefits to stay home
to care for his newborn infant, and section 32.1 does so only in
extraordinary situations. The mother may use some of her
maternity benefits for child care after her confinement but the
criteria and conditions of benefits under section 30 are substan
tially different from those of section 32. Section 30 is based on
the assumption that upon the birth of a baby, the natural
mother is the natural and inevitable care-giver and that the
father is the natural breadwinner. Thus section 30 does not give
the natural parents the opportunity and choice afforded to
adoptive parents by section 32 of letting the father be the
principal care-giver and the mother return to work. This is
discrimination based on sex within the meaning of subsection
15(1) of the Charter. It has its roots in sexual stereotyping of
the respective roles of the father and mother generally, and
specifically in relation to their natural newborn child.
It also appears from the evidence, taken with the wording of
section 32, that the purpose and effect of that section is based
on the social importance of parents being able to spend time at
home with an adopted pre-school child, without regard to the
sex of the parent claiming benefits. Such a rationale would
equally apply to care-giving by natural parents in respect of
their newborn child. Since there is no provision to that effect,
there is an inequality of benefits. Furthermore, internationally
adopted objectives and obligations reinforce the view that
Canadian society is committed to equalizing the role of parents
in the care of children as much as possible.
This inequality amounts to discrimination, whether applying
the minimalist test adopted in Smith, Kline & French
Laboratories Ltd. or the more onerous test used in the Andrews
case. The distinctions cannot be explained by natural differ
ences among the classes of people involved and work to the
substantial disadvantage of those denied child-care benefits.
Nor can the denial of benefits to natural parents under section
32 be considered offset by the maternity benefits available to
the natural mother under section 30. This provision is struc
tured to benefit pregnant women only, for childbearing and
post-natal recovery. The failure to make benefits available to
one group and not the other is unreasonable and unfair.
It would not be "appropriate and just in the circumstances"
to resolve the issue by striking section 32, thereby depriving
those persons qualified under section 32 of their benefits. It is
preferable to declare that natural parents should have the same
advantages as adoptive parents, subject to the same conditions.
Under Rule 341A, the present judgment is suspended in
anticipation that in the interim, necessary consideration will be
given to appropriate legislative action should an appeal be
taken and not succeed. Benefits will therefore continue to be
paid as now provided under the Act.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, s. 59.2 (as
added by R.S.C. 1970 (2nd Supp.), c. 17, s. 16; 1984,
c. 39, s. 6).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 15, 24(1).
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 5.
Convention on the Elimination of All Forms of Discrimi
nation against Women, Dec. 18, 1979, [1982] Can.
T.S. No. 31, Preamble, Art. 11(2)(c).
Declaration on the Elimination of Discrimination against
Women, G.A. Res. 2263, 22 U.N. GAOR (1967), Art.
6(2)(c).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Federal Court Rules, C.R.C., c. 663, R. 341A (as added
by SOR/79-57, s. 8).
The Employment Standards Act, C.C.S.M., c. E110, ss.
34.2, 34.3.
The Labour Standards Act, R.S.S. 1978, c. L-1, ss. 23,
29.1, 29.2 (as am. by S.S. 1979-80, c. 84, s. 8).
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c.
48, ss. 22(3) (as am. by S.C. 1980-81-82-83, c. 150, s.
3; 1988, c. 8, s. 2), 25, 30 (as am. by S.C. 1980-81-82-
83, c. 150, s. 4), 32 (as am. idem, s. 5), 32.1 (as added
by S.C. 1988, c. 8, s. 3).
CASES JUDICIALLY CONSIDERED
APPLIED:
Smith, Kline & French Laboratories Ltd. v. Canada
(Attorney General), [1987] 2 F.C. 359 (C.A.); Califano
v. Westcott, 443 U. S. 76 (1979).
CONSIDERED:
Andrews v. Law Soc. of B.C. (1986), 2 B.C.L.R. (2d) 305
(C.A.); McKinney v. University of Guelph et al. (1988),
24 O.A.C. 241, leave to appeal granted [1988] 1 S.C.R.
xi.
REFERRED TO:
R. v. Ertel (1987), 20 O.A.C. 257; The Queen v. Oakes,
[1986] 1 S.C.R. 103; Headley v. Canada (Public Service
Commission Appeal Board), [1987] 2 F.C. 235 (C.A.);
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145;
Hoogbruin v. A.G.B.C. (1985), 70 B.C.L.R. 1 (C.A.);
Attorney-General of Nova Scotia et al. v. Phillips
(1986), 34 D.L.R. (4th) 633 (N.S.C.A.); Singh et al. v.
Minister of Employment and Immigration, [1985] 1
S.C.R. 177; Taylor v. Canada, T-2861-86, Strayer J.,
judgment dated 7 / 6 /88, F.C.T.D., not yet reported.
AUTHORS CITED
Canada. House of Commons. Standing Committee on
Justice and Legal Affairs. Sub-committee on Equality
Rights. Minutes of Proceedings and Evidence, Issue
No. 29 (Boyer Report) (1st Sess., 33rd Parl., 1984-85).
Canada. Report of the Royal Commission on the Status
of Women in Canada. Ottawa: Information Canada,
1970.
Canada. Report of the Commission of Inquiry on Unem
ployment Insurance (Forget Report). Ottawa: Minister
of Supply and Services, 1986.
COUNSEL:
B. G. Morgan and D. Aleck Dadson for
plaintiff.
Roslyn J. Levine and Y. Côté for defendants.
Mary Eberts and Edward J. Babin for
intervenor.
SOLICITORS:
Osier, Hoskin & Harcourt, Toronto, for
plaintiff.
Deputy Attorney General of Canada for
defendants.
Tory, Tory, Deslauriers & Binnington,
Toronto, for intervenor.
The following are the reasons for judgment
rendered in English by
Introduction
STRAYER J.: This is an action for a declaration,
in various alternative forms, to the effect that
benefits should be payable under the Unemploy
ment Insurance Act, 1971' to the natural fathers
of newly-born infant-children in respect of time
taken off work by fathers to look after such chil
dren after their arrival at home, on the same basis
as such benefits are now payable to adoptive par
ents under section 32 of the Act [as am. by S.C.
1980-81-82-83, c. 150, s. 5]. Some suggested alter
native forms of a declaration would expressly
ensure that such entitlement would not affect
existing maternity benefits for the natural mother
under section 30 of the Act [as am. idem, s. 4],
while one would involve a sharing between the
1 S.C. 1970-7I-72, c. 48.
natural parents of benefits equivalent to section 32
benefits provided for adoptive parents.
The plaintiff also seeks an order that he is
entitled to benefits with respect to time so spent by
him with his newly-born infant child in 1985.
These pleas are based on section 15 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)]. The state
ment of claim also asks for a declaration that the
refusal of the Commission to pay the plaintiff such
benefits is a discriminatory practice contrary to
section 5 of the Canadian Human Rights Act. 2
This request was abandoned at trial.
This case was tried consecutively with that of
Taylor v. Canada, number T-2861-86 and the
evidence in this case was applied, by agreement, to
the Taylor case. The substantive issues are essen
tially the same and I will deal with the Taylor case
in only brief separate reasons.
By orders of Joyal J. of June 30, 1987, the
Women's Legal Education and Action Fund was
given leave to intervene in these actions and to
exercise all the rights of a party. Through its
counsel it played a very helpful role during these
proceedings.
Statutory Background
It will be useful first to set out the principal
current statutory provisions and their history.
The provision of the Unemployment Insurance
Act, 1971 which is said to create discrimination
contrary to section 15 of the Canadian Charter of
Rights and Freedoms is the following:
32. (1) Notwithstanding section 25 but subject to this sec
tion, initial benefit is payable to a major attachment claimant
who proves that it is reasonable for that claimant to remain at
home by reason of the placement with that claimant of one or
more children for the purpose of adoption pursuant to the laws
governing adoption in the province in which that claimant
resides.
2 S.C. 1976-77, c. 33.
(2) Subject to subsection 22(3), initial benefit is payable
under this section for each week of unemployment in the period
(a) that begins with the week in which the child or children
are actually placed with the major attachment claimant; and
(b) that ends
(i) seventeen weeks after the week in which the child or
children are so placed,
(ii) with the week in which it is no longer reasonable for
that claimant to remain at home for the reason referred to
in subsection (I), or
(iii) with the week immediately preceding the week for
which benefit is claimed and payable pursuant to another
section of this Part,
whichever is the earliest.
(3) Where benefits are payable to a major attachment
claimant under this section and earnings are received by that
claimant for any period that falls in a week in the period
described in subsection (2), the provisions of subsection 26(2)
do not apply and all such earnings shall be deducted from the
benefit payable for that week.
(4) Benefits shall not be paid pursuant to this section to
more than one major attachment claimant in respect of a single
placement of a child or children for the purpose of adoption.
(5) Where, before any benefit has been paid to a major
attachment claimant in respect of a single placement of a child
or children for the purpose of adoption, two insured persons
with whom the child or children are placed for the purpose of
adoption claim benefit under this section, no benefit shall be
paid under this section until one of such claims is withdrawn.
It will be noted that while this permits benefits to
a claimant of either sex upon the occasion of the
placing with that claimant of a child (including, of
course, infant-children) it clearly is confined to the
care of adopted children. By its nature this benefit
is in respect of parental care and has nothing to do
with the needs of a natural mother with respect to
her own pre-natal or post-natal condition or the
unique care which she can give to her natural
infant such as by breast-feeding.
No similar provisions are made for benefits in
respect of care by natural parents of infant-chil
dren upon their reception into the home.
Section 30 provides for up to fifteen weeks of
benefits for a "major attachment claimant who
proves her pregnancy", and such benefits may be
taken by the natural mother, as she chooses, within
a period commencing eight weeks before the week
of expected birth and up to seventeen weeks after
the week of birth. This clearly excludes any ben
efits for the natural father of the child, and for
reasons which I will elaborate later, is not in its
purpose and effect primarily in respect of parental
care for infant-children. Section 32.1, very recent
ly adopted by Parliament' now provides for a
natural father of a newborn child to get benefits
comparable to adoptive parents, but only in very
limited circumstances specified therein: that is,
where it is reasonable for him to stay home by
reason of the death of the mother or her disability
"rendering her incapable of caring for the child".
Otherwise natural fathers are not entitled to any
benefits in respect of time spent by them away
from work in the care of their newborn child.
Originally the Unemployment Insurance Act,
1971 made no provision for benefits for parents
with respect to work time lost by reason of mater
nity or child-care. This was consistent with the
general purpose of that Act, which is to compen
sate people who lose their employment involuntari
ly but who are available, and looking, for work. In
the report of the Royal Commission on the Status
of Women in Canada 4 it was recommended that
not only should employed pregnant women be
given maternity leaves but also that they should
get some compensation for loss of earnings during
maternity leave. After looking at various means
for providing such compensation the Royal Com
mission recommended that this be done under the
Unemployment Insurance Act, 1971, with benefits
being payable for a period of up to eighteen
weeks. 6 The following year this recommendation
was implemented in a new section 30 of the revised
Unemployment Insurance Act, 1971. Only fifteen
weeks of benefits were provided. In its original
3 S.C. 1988, c. 8 [s. 3], given Royal assent on March 29,
1988, deemed to have come into force one year prior to that
date.
4 Information Canada, Ottawa, 1970.
5 Ibid., para. 284.
6 Ibid., paras. 286-288.
form section 30 virtually obliged a pregnant
woman to take more of her maternity benefits
prior to the birth of the child: she could at most
collect six weeks of benefits after the week of the
birth. Thus the emphasis was more clearly on
maternity benefits as assisting a pregnant mother
in respect of any pre-natal disabilities or conditions
which might require her absence from work. Less
time was thus available for post-natal recovery and
infant care. This provision was amended in 1977 7
to allow the mother in effect to take more or all of
the weeks of benefits after the birth of the child, as
she chooses.
In 1982 the present section 32 of the Act was
added 8 by allowing benefits for adoptive parents
with respect to the placement of an adopted child
in their home. By subsection 32(1) the claimant
must show that it is reasonable that he or she
remain at home for this purpose. It will be noted
by subsection 32(4) that only one of the adoptive
parents can collect Unemployment Insurance ben
efits with respect to the placement of any one
child, although by subsection 32(1) there is a
possibility that if one parent were already at home
to look after the child but was not collecting
benefits, the other parent might be able to stay
home also and collect benefits if in the circum
stances it were "reasonable" that he or she remain
at home.
Another important provision which bears on all
of these benefits is subsection 22(3) [as am. by
S.C. 1980-81-82-83, c. 150, s. 3; 1988, c. 8, s. 2]
which now provides as follows:
22....
(3) Notwithstanding subsection (2), the maximum number
of weeks for which initial benefit may be paid to a claimant
(a) in any benefit period for reasons of pregnancy, place
ment of a child or children for the purpose of adoption, death
or disability of a mother of a child, death or disability of a
person with whom a child was, or children were, placed for
the purpose of adoption, prescribed illness, injury or quaran
tine or any combination thereof, or
7 S.C. 1976-77, c. 54, s. 38(1).
8 S.C. 1980-81-82-83, c. 150, s. 5(1).
(b) in respect of a single pregnancy or a single placement of
a child or children for the purpose of adoption,
is fifteen.
It will be seen that no claimant can within his or
her total benefit period (normally lasting fifty-two
weeks) cumulatively receive more than fifteen
weeks of pregnancy, adoption, child-care (where
the mother is dead or disabled), or sickness, ben
efits. Thus for example the natural mother of an
infant-child, an adoptive parent, or the natural
father of a newborn child whose mother is dead or
disabled, will not be entitled to a full fifteen weeks
of benefits if such person has already during his or
her benefit period had sickness benefits. His or her
entitlement would be reduced by the number of
weeks of sickness benefits already taken or be
denied entirely if those sickness benefits have
already amounted to fifteen weeks or more. There
are further restrictions on such benefits in subsec
tion 32.1(2) into which I need not go.
Background Facts
The plaintiff is married to Marcia Gilbert who
was expecting their second child in the summer of
1985. She applied for maternity benefits on July 9,
1985 and a benefit period was established com
mencing July 7, 1985. (As I understand it, Ms.
Gilbert received benefits during the period July 21
to November 1, 1985). She and the plaintiff say,
and I accept, that they had hoped to share in the
care of the expected child during its first few
weeks and more particularly hoped that as soon as
possible after the birth Ms. Gilbert could return to
work and the plaintiff could stay home with the
child. They preferred this arrangement in order
that the plaintiff could have an equal opportunity
to establish a strong and positive relationship with
the child at an early stage. Further, Ms. Gilbert's
employment was such that it was more difficult for
her to be absent for a long period during the
summer than it was for the plaintiff. It should also
be noted that there was a young child at home who
would of course need special attention during and
after the mother's confinement.
The baby was born on July 28, 1985. The
plaintiff took the following three weeks off work,
without pay. On August 2, 1985 he applied for
benefits for "maternity leave". He explained on
the application 9 that what he was seeking was a
sharing with his wife of the fifteen weeks of ben
efits payable under section 30, and he invoked
section 15 of the Charter in support of the right to
share those benefits. With this application he filed
a "Supplementary Application for Paternity Bene
fits", modifying for that purpose an application
form designed for adoption benefits. On Septem-
ber 17, 1985 he was advised 10 that he was not
entitled to benefits because he was not available
for work. The notice refers to the fact that:
You have taken a leave of absence from your job to assume
primary responsibility for childrearing.
He appealed this decision to a Board of Referees
and at that hearing mainly argued that he should
have been entitled to benefits under section 30 and
that the denial of such benefits was a contraven
tion of the Canadian Human Rights Act and the
Charter. He did also refer to section 32 of the
Unemployment Insurance Act, 1971 in arguing
that he had been given unequal treatment. The
Board dismissed the appeal on November 29, 1985
and the plaintiff then filed an appeal to an Umpire
under the Unemployment Insurance Act, 1971. He
alleged error in law because inter alia the denial of
benefits to him under sections 30 and 32 contrav
ened section 15 of the Charter. By letter" of
October 22, 1986 from the Office of the Umpire
he was advised that the Chief Umpire had doubts
as to whether a constitutional question of this
nature should be dealt with in an ordinary umpire
hearing. The Chief Umpire suggested the possibili
ty of proceedings being commenced in the Federal
Court instead. On the same day this action was
commenced.
The plaintiff has alleged that he was otherwise
entitled to benefits under the Act had he been
available for work. His non-availability was a bar
because he did not come within the categories
covered by sections 30 and 32, both of which
permit non-available parents to collect benefits. It
is common ground that had he been eligible for
9 Exhibit P2-9.
10 Exhibit P2-13.
" Exhibit P2-31.
benefits they would have been payable at the rate
of $276 per week.
It is also of interest to note that after losing his
appeal to the Board of Referees, the plaintiff filed
a complaint on December 18, 1985 against the
Canadian Employment and Immigration Commis
sion with the Canadian Human Rights Commis
sion. He alleged that the C.E.I.C. had contravened
section 5 of the Canadian Human Rights Act
which prohibits inter alia discrimination based on
"family status". On September 24, 1987 he was
à dvised by the Chairman of the Canadian Human
Rights Commission 12 as follows:
The Commission ... decided to dismiss that part of the com
plaint based on the ground of family status because, although
the policy complained of is discriminatory, a Tribunal is not
warranted as no effective remedy can be provided through the
Canadian Human Rights Act.
Standing
The defendants did not object to the standing of
the plaintiff to raise this constitutional issue,
although they did challenge the standing of the
plaintiff in the Taylor case which I will deal with
separately. I am satisfied that the plaintiff has the
necessary standing. In my view the above facts
indicate that he had a direct personal interest as he
alleges he was otherwise qualified as a beneficiary
under the Unemployment Insurance Act, 1971 but
was denied benefits on a ground which he says is
unconstitutional. He experienced an interruption
of earnings, he applied for and was denied ben
efits, and he appealed that decision through
normal channels. His decision not to continue the
umpire appeal, but to come to this Court first in
an action for a declaration, was in my view com
pletely justified. Where important constitutional
issues of this nature are to be determined, an
action in the Court with all its procedural means
for defining and elaborating the facts and legal
issues is much to be preferred to an informal
summary proceeding before an umpire.
12 Exhibit P2-34.
Interpretation of subsection 15(1) of the Charter
The plaintiff relies on this subsection which
provides 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.
In effect, he complains of a denial of the "equal
benefit of the law".
Because this section was not proclaimed in force
until April 17, 1985 the jurisprudence interpreting
it is in a less developed state. Trial and intermedi
ate appellate courts, including provincial courts of
appeal and the Federal Court of Appeal, have
applied a variety of tests in determining challenges
to legislation for conflict with subsection 15(1).
The first such decision appealed to the Supreme
Court of Canada, Andrews v. Law Soc. of B.C. 13
was argued in 1987 and at the time of writing of
the present judgment no decision had yet been
issued.
The underlying issue in all of these cases has
been the proper relationship between subsection
15(1) and section 1 of the Charter. Section 1, of
course, provides that even where rights guaranteed
by the Charter are limited by law such limitation
may be valid if it can be demonstrated by those
relying on such limitation that it is "reasonable"
and is "demonstrably justified in a free and demo
cratic society". Thus, in relation to any given
distinction created by statute as between different
individuals or categories of individuals the ques
tion is: to what extent should the validity of that
distinction be tested under subsection 15(1), and
to what extent should it be tested under section 1?
There is an important conceptual difference: if it is
to be tested under subsection 15(1) the Court is
really thereby defining the scope of the rights
guaranteed by that subsection; if the test is con
ducted under section 1, this means that a right has
been infringed and one is then engaged in deter
mining the validity of the infringement or limita
tion by the standards of section 1. There is also an
important practical difference: he who alleges
infringement of a subsection 15(1) right has the
13 (1986), 2 B.C.L.R. (2d) 305 (C.A.).
onus of showing by a balance of probabilities that
such right exists and has been infringed; whereas
once this infringement is established, it is the party
who is nevertheless relying on the validity of the
infringing law who has the burden of justifying it
under section 1. There seems to be a fairly general
consensus among appellate courts which have had
to consider this issue that there are significant
criteria which must first be satisfied by a plaintiff
to show that the distinction of which he complains
is prima facie an infringement of his right under
subsection 15(1), e.g., to "equal benefit of the law
without discrimination". Not every distinction
made by law will amount to a prima facie
infringement of equality rights. It is only when
certain tests of "equality" and "discrimination"
are applied and infringement is found that the
onus may shift to the defendant if that party seeks
to rely on section 1 to justify the infringement.
Going further, there seems to be a measure of
consensus that the first test to be applied under
section 15 is as to whether there is inequality in
the sense that the legislature has used an imper
missible categorization in its differential applica
tion of the law, so as in effect to treat persons who
are similarly situated in a dissimilar fashion. 14
This question may be easily answered if the cate
gorization employed is one of those expressly enu
merated as prohibited grounds of discrimination in
subsection 15(1). If the basis of categorization
seems to be some other ground, then the Court
must look to see if such a ground should be taken
to be equally prohibited by subsection 15(1).
While there are as yet no exhaustive tests for
determining this, it appears to be acceptable to
look at factors such as whether the ground of
distinction in question is analogous to those
specifically mentioned in subsection 15(1); wheth
er it is rooted in historic stereotyping; whether it
involves personal characteristics which are largely
4 See e.g. Smith, Kline & French Laboratories Ltd. v.
Canada (Attorney General), [I987] 2 F.C. 359 (C.A.); R. v.
Ertel (1987), 20 O.A.C. 257; Andrews v. Law Soc. of B.C.,
supra, note 13.
beyond the control of the individual, similar to
these characteristics specifically mentioned in sub
section 15(1); whether those affected by the dis
tinction are persons traditionally disadvantaged or
the object of prejudice; and whether such a distinc
tion is inconsistent with the purpose of the law
itself or the values generally recognized in Canadi-
an society. None of these criteria is necessarily
determinative in deciding whether the distinction
in question is one which creates inequality within
the meaning of subsection 15(1). These are the
types of factors recognized by the Federal Court of
Appeal in Smith, Kline & French 15 a decision
which is binding on me and which is apparently
the only unanimous decision of a panel of that
Court on the interpretation of subsection 15(1). 16
It is also notable that counsel for all parties in the
present case relied on the Smith, Kline & French
decision to varying degrees.
If it is initially found that the distinction in
question creates "inequality" as contemplated by
this subsection, the appellate courts have then
generally considered whether this inequality of
treatment by the law amounts to "discrimination".
As subsection 15(1) only guarantees "equal ben
efit ... without discrimination" that right is
abridged only where discrimination is shown. It is
in the test of "discrimination" where the most
divergence has appeared among the appellate
courts. Some have applied a minimalist test for
discrimination, being prepared to find that dis
crimination is established if the effect is "pejora-
tive", that is negative, and it is not trivial. This
was essentially the approach of the Federal Court
of Appeal in Smith, Kline & French. The effect of
such an approach is that infringement of subsec
tion 15(1) will more readily be found and justifica
tion, if any, for the law must be demonstrated
under section 1 by those relying on the law. In the
view of Hugessen J., writing the opinion of the
Court in Smith, Kline & French, such an approach
is required for consistency with the decision of the
Supreme Court of Canada in The Queen v.
15 Ibid.
16 Cf. Headley v. Canada (Public Service Commission
Appeal Board), [1987] 2 F.C. 235 (C.A.) in which another
three-judge panel concurred in a result but did not agree on the
rationale.
Oakes" where the Court elaborated the test appli
cable under section 1 in determining the validity of
a limitation on rights where an infringement is
already established. That test involves the con
sideration of both ends and means of the limitation
in question. Hugessen J. considered it important
that such qualitative tests not be applied in deter
mining initially whether there had been infringe
ment of subsection 15(1); otherwise the role of
section 1 would be usurped.
Nevertheless, the Supreme Court of Canada has
not hesitated to apply rather similar qualitative
tests in determining whether there has been initial
infringement of a Charter right. 18 That is, the
Court has looked at the definition of each right to
see whether it has qualifying words that must first
be considered before a case of infringement is
made out. This is logically prior to the application
of section 1, which is not a test of rights but rather
a test of limits on rights. Thus some other appel
late courts have read more criteria into subsection
15(1) and have, in order to find discrimination,
required something more than that the distinction
in question be merely pejorative and substantial.
Various panels of the Ontario Court of Appeal
have formulated such tests in different ways. A
survey of that Court's jurisprudence may perhaps
best be seen in the recent decision of McKinney v.
University of Guelph et al. 19 where it seems to
have adopted a kind of middle approach. In its test
of discrimination it appears to have gone beyond
requiring only that the law's inequality have a
substantial and pejorative effect, and has also
resorted to adjectives such as "unfair", "invidi-
ous", and "irrational" to characterize laws that
amount to prohibited discrimination. But the
Court confirmed in the McKinney case that it had
not, and would not in that case, require that a
plaintiff show that a law is "unreasonable" before
" [1986] 1 S.C.R. 103.
' s See for example, Hunter et al. v. Southam Inc., [1984] 2
S.C.R. 145 where the Court balanced state and private inter
ests in determining whether there had been an "unreasonable
search or seizure" as prohibited by section 8 of the Charter.
19 (1988), 24 O.A.C. 241, application for leave to appeal
granted by the Supreme Court of Canada, April 21, 1988,
[1988] 1 S.C.R. xi.
it would find an infringement of subsection 15(1).
It confirmed, as did the Federal Court of Appeal
in the Smith, Kline & French case, that tests of
"reasonableness" are to be resorted to only in
applying section 1 once a prima facie case of
infringement has been established.
Both the Federal Court of Appeal in Smith,
Kline & French and the Ontario Court of Appeal
in McKinney distinguished their positions from
that of the B.C. Court of Appeal in Andrews v.
Law Soc. of B.C. 20 In that case the Court held that
to establish discrimination under subsection 15(1)
a party must demonstrate that the distinction
imposed by law is "unreasonable or unfair". This
decision has been followed in several cases by the
B.C. Court of Appeal and other courts of that
province.
In the present case the defendant has not
invoked section 1 and has expressly denied any
reliance on it. Thus any criteria to be applied by
me in determining whether there is a violation of
the Charter must be found in section 15. I am
assisted in this respect by the position taken by
counsel for the defendants who did not contend
that the plaintiff had to meet the heavier burden of
proof which would be imposed on him by the test
applied in Andrews v. Law Soc. of B.C. I shall
therefore consider the evidence with particular
regard to the less onerous criteria of the Smith,
Kline & French decision which is, in any event,
binding on me. Due to the present uncertainty in
the jurisprudence, however, I will also consider
whether the plaintiff has met the more rigorous
requirements enunciated in Andrews.
Is there a Denial of "Equal Benefit of the Law"?
The prohibited grounds specified in subsection
15(1) of the Charter do not include proscribed
criteria for distinction such as "natural parent
hood", "reproductive ability", "family status" or
any term which neatly covers this kind of distinc
tion. It remains for me to determine whether a
20 See supra, note 13.
distinction of this nature should nevertheless be
regarded as prima facie prohibited by subsection
15(1). To do this I must consider some of the
factors set out above.
The distinction in the Unemployment Insurance
Act, 1971 complained of by the plaintiff is that
made between adoptive parents and natural
fathers in respect of the arrival of their respective
homes of infant-children. Section 32 as quoted
above provides benefits for up to fifteen weeks to
one or the other of the adoptive parents (assuming
they are both otherwise eligible for Unemployment
Insurance), as they may choose, for one of them to
stay home following the placement of a child in
their home. There is no comparable provision for
natural fathers with respect to the arrival in their
home of newborn children, except for the extraor
dinary situations covered by the new section 32.1.
It is true that by section 30 the natural mother of a
child may receive fifteen weeks of benefits com
mencing before or at birth of the child. It is also
true that she may thus be in receipt of benefits for
a certain period when she is home with the child
after her confinement. But the criteria and condi
tions of benefits under section 30 are substantially
different from those of section 32. For present
purposes it is sufficient to note that section 30
allows no option for the natural father to use or
share such benefits for the purpose of allowing him
to stay home to care for his newborn infant. We
therefore have distinctly different benefits avail
able as between adoptive parents and natural
parents.
I believe that a proper understanding of this
distinction created by the Act requires that one
consider the assumptions upon which it is based.
These relate not only to the natural father such as
the plaintiff, upon whom it immediately impacts,
but also to the natural mother. Even if one accepts
(and I do not, as will be indicated below) that
section 30 benefits are mainly for child care pur
poses and are thus roughly the equivalent of sec
tion 32 benefits, this approach is predicated on the
belief that, upon the birth of a baby, its natural
mother is the natural and inevitable caregiver and
that the father is the natural breadwinner. It
assumes that not only is it unnecessary that the
natural father have the opportunity to receive par
tial compensation in lieu of employment income in
order to stay home and be the principal care giver,
but also that the natural mother should not at least
have the option, which his presence at home during
this period would afford, to return to paid employ
ment herself as a breadwinner if she is otherwise
able to do so. It is this opportunity and choice
denied to the natural parents which is afforded to
adoptive parents by section 32.
Thus in part I am able to characterize this as
discrimination based on "sex" which is one of . the
specified grounds in subsection 15(1). This is
because it has its roots in sexual stereotyping of
the respective roles of the father and the mother
generally, and specifically in relation to their natu
ral newborn child. As was said by the Supreme
Court of the United States in Califano v.
Westcott 21 in respect of an Act of Congress which
provided financial assistance for families with
dependent children where they lacked support
because the father (but not the mother) was unem
ployed, such gender classification
... is ... part of the "baggage of sexual stereotypes," ... that
presumes the father has the "primary responsibility to provide
a home and its essentials," ... while the mother is the " `center
of home and family life.' "
A Parliamentary Committee has similarly assert
ed, in relation to the need for equal parental
benefits under the Unemployment Insurance Act,
1971: 22
There is no doubt in our minds that the traditional emphasis on
the mother as the primary care-giver has played a part in
holding women back from full participation in society.
In part this distinction may also be seen as a
stereotyping of roles of natural parents as com
pared to those of adoptive parents, a distinction
based on basic biological facts. These usually
involve personal characteristics which inhere in the
individual which are not dissimilar to the genetic
factors which create such distinctions as race,
colour, sex, or sometimes mental or physical disa
bility, all as referred to in subsection 15(1). For
21 443 U. S. 76 (1979), at p. 89.
22 Report of the Sub-committee on Equality Rights of the
Standing Committee on Justice and Legal Affairs (the "Boyer
Report") (Ottawa, 1985), Issue 29, at p. 11.
the most part it is such characteristics which dis
tinguish adoptive parents from natural parents and
which are generally beyond the control of the
individual to change.
Section 32 also appears to create an inequality
as between persons who are similarly situated if
one has regard to the apparent purposes of the
Unemployment Insurance Act, 1971 in general and
section 32 in particular. The general purpose of
the Act is that of income replacement for those
who are normally in the work force but are tem
porarily unable to work. Of course, as noted above,
the original purpose of the Act was to provide
benefits only to those who were not only out of
work but were available for work. The maternity
benefits in section 30 created in 1971 represent an
exception to that general principle in that normally
those entitled to such benefits are not available for
work. Nevertheless it was thought to be socially
important to provide natural mothers with income
replacement during a period when they are
engaged in giving birth to and nurturing an infant-
child. Section 32 extended income replacement to
adoptive parents, apparently on the basis that this
too was socially important. Consistently with this,
since section 32 has been in effect the Commission
has issued a circular including guidelines for In
surance Officers to determine whether it is "rea-
sonable" under section 32 for an adoptive parent
to stay home during the first seventeen weeks after
the placement of the child in his or her home. The
circular states, and this was confirmed in evidence
by a Commission officer, as representing Commis
sion practice, that (other things being equal) it is
generally considered to be reasonable for an adop
tive parent to stay home with any child of pre
school age. It appears to me that this evidence,
taken with the words of section 32 itself, indicate a
purpose and effect of that section based on the
social importance of a parent or parents being able
to spend time at home at the time of introduction
to that home of a pre-school child, without regard
to the sex of the parent claiming benefits. Such a
rationale would equally apply to care-giving by
natural parents in respect of their newborn child.
It is also obvious that the policy which supports
section 32 has nothing to do with the particular
pre-natal or post-natal needs and role of the natu
ral mother herself: indeed, it is quite possible that
maternity benefits be paid to a natural mother
under section 30, and that subsequently benefits be
paid under section 32 to the adoptive parents who
adopt her child in respect of the introduction of
that child into their home.
Therefore a distinction made between adoptive
parents and natural parents in respect of a period
of child-care following introduction of a child into
the home appears to create inequality of benefit in
terms of the very purpose of the Act and the
section itself.
Equality between parents with respect to respon
sibility, and opportunity, for care of a newborn
child appears to be most consistent with the values
of contemporary Canadian society. Evidence of
this can be found in various expressions of public
policy. Parliament itself in section 59.2 of the
Canada Labour Code 23 requires employers to
grant a leave of absence of up to twenty-four
weeks "where an employee has or will have the
actual care and custody of a new-born child". This
does not of course require that such leave be given
with pay but does guarantee that an employee of
either sex may take off the time and resume his or
her former position upon return to work. Manitoba
legislation, while granting pregnant female
employees seventeen weeks of leave, also provides
for paternity leave for the natural father of up to
six weeks. 24 It provides adoption leave of up to
seventeen weeks for any employee, regardless of
the sex of the employee. 25 Saskatchewan law pro
vides for maternity leave of up to eighteen weeks
as well as paternity leave for the natural father of
up to six weeks and adoption leave for any adop-
23 R.S.C. 1970, c. L-1 (as added by R.S.C. 1970 (2nd Supp.),
c. 17, s. 16; 1984, c. 39, s. 6).
24 The Employment Standards Act, C.C.S.M., c. E110, s.
34.2.
25 Ibid., s. 34.3.
tive parent of up to six weeks. 26
Viewed in a wider context, Canada is part of an
international community which has affirmed cer
tain principles concerning the equality of parents.
The Declaration on the Elimination of Discrimi
nation against Women, proclaimed by the General
Assembly of the United Nations on November 7,
1967 27 states in article 6, section 2, paragraph (c):
Article 6
2. ...
(c) Parents shall have equal rights and duties in matters
relating to their children. In all cases the interest of the
children shall be paramount.
More recently, the international Convention on the
Elimination of All Forms of Discrimination
against Women 28 was ratified by Canada in 1981.
In its preamble it states that the parties to the
Convention are:
Aware that a change in the traditional role of men as well as
the role of women in society and in the family is needed to
achieve full equality between men and women,
In Article 11, paragraph 2(c) it requires the par
ties to the Convention to take appropriate
measures:
(c) To encourage the provision of the necessary supporting
social services to enable parents to combine family obligations
with work responsibilities and participation in public life, in
particular through promoting the establishment and develop
ment of a network of child-care facilities;
These internationally adopted objectives, and in
the latter case obligations, reinforce the view that
Canadian society is committed to equalizing the
role of parents in the care of children as much as
possible, for the benefit of the family in general
and in particular for the achievement of greater
equality in the work place for women.
I am satisfied from the foregoing that the kind
of distinction made by section 32 of the Unem-
26 The Labour Standards Act, R.S.S. 1978, c. L-1, ss. 23,
29.1, 29.2 (as am. by S.S. 1979-80, c. 84, s. 8).
27 G.A. Res. 2263, 22 U.N. GAOR (1967).
28 G.A. Res. 34/180 (1979) (in force September 3, 1981);
ratified by Canada, (December 10, 1981) [[19821 Can. T.S.
No. 31].
ployment Insurance Act, 1971 as between adoptive
parents and natural parents, resulting in a disin
centive for natural fathers to accept an equal role
and responsibility with respect to the care of their
newborn children, does create an inequality of
benefit within the contemplation of subsection
15(1) of the Charter.
Is there "discrimination"?
Closely related to this question is that of wheth
er the inequality amounts to "discrimination".
Consistently with my analysis above of the domi
nant jurisprudence on this question, I must consid
er at least whether the unequal treatment is
pejorative, i.e. negative or disadvantageous, in
nature and whether it is substantial. These issues
can be dealt with together. As the Act now stands,
section 32 makes it possible for either one of the
adoptive parents, if he or she is otherwise entitled
to unemployment insurance benefits, to collect up
to fifteen weeks of benefits after the placement of
the child if it is reasonable for him or her to stay
home with the child. This means that in principle
at least the father has an equal opportunity, and
implicitly an equal responsibility, to take time off
his work where both parents are employed. If one
of them is not employed in insurable employment
it is at least possible that that parent could stay
home and the other, employed, parent could also
stay home and claim benefits if he or she could
show that this was "reasonable" in the circum
stances. Admittedly, according to the evidence of
Joseph Verbruggen, Director General of Insurance
Policy of the Commission, it would be only rarely
that the Commission would regard it as reasonable
for the parent employed in insurable employment
to stay home if his spouse were already home to
look after the adopted child. But it could happen,
for example, if there were also an older child at
home with whom the parents were having behavi
oural problems which might in fact be aggravated
by the placement of a new child. In none of these
situations would natural parents have such a
choice as to who might receive unemployment
insurance benefits; indeed in none of them would
the natural father have any right whatsoever to
benefits arising out of the introduction of his
infant-child into his home. So on its face, the
statute appears to deny an opportunity for natural
fathers, and a choice both for him and the mother
of his child, which are available to adoptive
parents.
The evidence indicates that such distinctions
cannot be explained by natural differences among
the classes of people involved and work to the
substantial disadvantage of those denied child-care
benefits. Evidence on this point was provided by
Dr. George Awad, Associate Professor of Psy
chiatry at the University of Toronto and Director
of the Family Court Clinic, Clarke Institute of
Psychiatry, Toronto. In the latter role he deals
with referrals of children by the Family Court to
advise, inter alia, on matters of custody. In this
process he has to examine and assess past and
future relationships developed between children
and parents and he has dealt with over one thou
sand such referrals. According to his evidence a
close, positive, parent-child relationship is impor
tant in child development generally; and that an
early involvement of the parent with the child will
likely have a long-term good effort on such a
relationship. In his view there is no difference
between mothers and fathers in this respect, and
that fathers are equally capable of caring for
infant children in this sense. Fathers will be
encouraged to know that he finds no basis for the
theory that infants are "monotropically matricen-
tric" in orientation (i.e. having an affinity only for
their mother). Thus from his experience he con
cludes that "the more a father is involved with the
life of a child, the better it is for the father-child
relationship, and for child development". He sees
this improved father-child relationship as having
benefits for the father as well as the child and also
strengthening the relationship between the parents.
In respect to none of these matters could he see
why there should be any distinction made between
adoptive parents and natural parents. He believes
from a psychological standpoint there is no justifi
cation for distinguishing between natural fathers
and adoptive fathers in this respect.
On the latter point the defendants called as an
expert Professor Joyce Cohen of the faculty of
Social Work at the University of Toronto who is
an expert in adoption matters. She demonstrated
that in Ontario only some 20% of children adopted
are under one year of age at the time of adoption
(although the proportion seems to be growing).
She stressed the "special needs", essentially arising
out of psychological problems, which most chil
dren adopted over this age have, and perhaps half
of those adopted under the age of one have, and
which typically require more parental attention
than does a typical child growing up with its
natural parents. I do not find this evidence com
pelling support for the distinctions made in the
present Unemployment Insurance Act, 1971. In
the first place the statistical evidence, and Profes
sor Cohen's evidence, pertain only to the Province
of Ontario whereas the people affected by this Act,
it will be noted, include many well beyond the
borders of that province. Secondly, while there
may be many adoptive parents faced with situa
tions which are not comparable to any thing con
fronted by natural parents in dealing with their
infant-child, nevertheless there remains a substan
tial number of placements of infant-children com
parable to the reception into their home by natural
parents of their newborn infant. The many varia
tions from this standard, comparable, situation
which no doubt are experienced by adoptive par
ents, depending on the age, cultural background,
psychological history, etc. of the adopted child and
the present circumstances of the adoptive parent or
parents, can be taken into account in the applica
tion of section 32 which provides benefits for an
adoptive parent when it is "reasonable" for him or
her to stay home after the placement of the child.
If parental benefits were available to natural par
ents where it was "reasonable" for him, or her, or
them to stay home the practical application of this
section with respect to the two different kinds of
parents might well be different in many cases. But
that is not a justification for a blanket denial of
child-care benefits to natural parents, or the denial
of choice between them as to who is to stay home.
Nor in my view can the denial of benefits to
natural parents under section 32 be considered
offset by the maternity benefits available to the
natural mother under section 30. The purpose and
principal effects of section 30 are quite different.
Section 30 is structured to benefit pregnant women
and pregnant women only. What a claimant must
prove for entitlement to benefits is the fact that
she is expecting. Once that is established, benefits
are payable to her even if she experiences a still
birth. If instead she has a baby, the benefits
incidentally assist her in whatever care of the baby
she is able to provide after birth until the fifteen
weeks of benefits expire. Expert evidence present
ed before me underlined the physical demands put
on pregnant women and new mothers, which
demands of themselves justify a period of at least
fifteen weeks free from outside paid employment.
Dr. Karyn Kaufman, an Associate Professor in the
School of Nursing, Faculty of Health Sciences,
McMaster University and Dr. Murray Enkin,
Professor of Obstetrics and Gynecology, Faculty of
Health Sciences, McMaster University, testified in
this respect. They stressed the special demands on,
and needs of, the pregnant woman and mother of a
newborn including the possibilities of difficult
labour (approximately 20% of the deliveries in
Canada today are by caesarean section), physical
and hormonal changes, loss of sleep, and the spe
cial role of breast-feeding. In this latter connection
it is a national health goal to increase the propor
tion of babies who are breast-fed for the first six to
nine months. These witnesses noted that such
maternity leave as is available to women usually
sets the outward limit of the breast-feeding period
as this becomes much more difficult upon return to
outside employment. These two experts expressed
the opinion that, while it is impossible to fix a
length of maternity leave that will universally meet
the physiological needs of pregnant women, they
felt that fifteen weeks was essential, to be set aside
for this purpose alone, so as to accommodate the
differing needs of such women. The evidence of
Julie Davis, Executive Vice President of the
Ontario Federation of Labour was generally sup
portive of this conclusion.
Notwithstanding the views of a 1981 Commis
sion Task Force 29 that maternity leave is viewed
now more as child-care leave, a survey taken in
February, 1985 by Statistics Canada of women
who stopped working as the result of maternity
shows that most women take substantial amounts
of time off work prior to childbirth. 49.6% of such
women claimed unemployment insurance benefits
before childbirth and took an average of seven
weeks off work prior to birth for which they
received on the average 4.4 weeks of benefits.
Another 15.7%, while not claiming any benefits
during maternity absence, took on the average 8.8
weeks off work prior to birth. Another 34.6% who
claimed benefits only after childbirth nevertheless
took off on the average 2.7 weeks prior to birth.
All three categories of women took substantially
more than fifteen weeks off work in connection
with a birth (on average, from 21.8 to 25.1
weeks)" all of which suggests that fifteen weeks
are not sufficient for both maternity and infant
care. Time taken off prior to childbirth is unmis
takably related to childbearing and not child-rear
ing. Other evidence suggested that many women
deferred going on maternity leave until the last
possible moment because the benefit period is so
limited that they wish to save it as much as
possible for postnatal recovery and- to some extent
for child-rearing. If there were other options for
parental care such as the father taking a few weeks
of paternity leave with benefits, this would enable
such women to take more time off work prior to
childbirth which, the evidence suggests, would be
more responsive to their physiological needs.
Even if section 30 were seen as a sufficient
equivalent for the natural mother of the child-care
benefits given to adoptive parents under section 32,
it would still not be possible to find in this system
any equivalence of benefits for the natural father:
29 Exhibit 49, at pp. 67-68.
30 Exhibit P2-52, at p. 20.
it is not acceptable to "average out" the benefits as
between the respective family units.
Finally, it is relevant that various public bodies
which have considered the matter have also con
cluded that the present system is discriminatory as
between adoptive parents and natural parents. As
noted earlier the Canadian Human Rights Com
mission advised the plaintiff on September 24,
1987 that it considerd this law discriminatory. In
1985 the Report of the Parliamentary Committee
on Equality Rights, a subcommittee of the House
of Commons Committee on Justice and Legal
Affairs established to consider what changes might
be required in federal statutes to make them
comply with section 15 of the Charter, recom
mended that natural parents should be entitled to
benefits equivalent to those provided to adoptive
parents. This approach, rather than allowing the
natural father to share part of the benefits under
section 30, was chosen by the Committee 31
... because it is the most appropriate way of meeting the
equality concerns that have been raised.
The Royal Commission of Inquiry on Unemploy
ment Insurance (Forget Commission) in its 1986
report agreed with the conclusions of the Parlia
mentary Committee in this respect and recom
mended the creation of a "two-tier" system of
benefits with a distinct provision for maternity
benefits and then a provision for parental benefits
equally available to natural or adoptive parents. 32
In the light of this evidence I am satisfied that
the distinction which excludes natural parents
from the opportunity of receiving unemployment
insurance benefits in respect of a period for child
care of an infant is pejorative or of negative effect.
Further, it is a substantial disadvantage which the
natural parents suffer in this way. This meets the
test for infringement of subsection 15 (1) of the
Charter in accordance with jurisprudence such as
the Smith, Kline & French case 33 which is binding
on me. Because of the tenuous nature of the
31 Supra, note 22, at p. 12.
32 Exhibit P2-53 at pp. 123-124.
33 Supra, note 14.
jurisprudence on this subject, however, and the
impending decision of the Supreme Court of
Canada in the Andrews 34 case where a more strin
gent test was applied to establish infringement of
subsection 15(1), I will make a finding also that the
distinctions in question here constitute discrimina
tion even when measured by those more rigorous
tests. The Andrews line of cases requires that for
there to be infringement of subsection 15(1) the
distinction in question must be "unreasonable or
unfair". As I have already indicated, on the face of
it this distinction between adoptive and natural
parents has nothing to commend it. While the
evidence does suggest that section 32 is inclusive of
situations which are not comparable to those of
natural parents, I am satisfied that there is still a
substantial area of comparability where benefits
are significantly different. Such distinctions as
may exist between natural and adoptive parents
can be accommodated within the test that benefits
are payable where it is "reasonable" for the parent
to stay home with the child. I find the failure to
make benefits on this basis available to one group
and not the other is unreasonable and unfair.
Remedies
Having concluded that section 32 creates un
equal benefit of the law by discrimination, there
are two possible kinds of declarations I could
make. I could either declare section 32 to be
invalid in its present form, thus denying benefits to
those already within it, or I could simply declare
the entitlement of natural parents to benefits equal
to those now provided to adoptive parents under
section 32. Counsel for the plaintiff and for the
intervenor argued for the latter approach, while
counsel for the defendants argued that I must, if I
concluded there was unequal benefit of the law,
strike down the existing benefits in section 32.
3° Supra, note 13.
In framing a remedy under the Charter, it is
important to keep in mind that subsection 24(1)
authorizes me in these circumstances to grant
24. (1) ... such remedy as the Court considers appropriate
and just in the circumstances.
Section 32 is defective, not because the benefits it
provides are prohibited by the Charter, but rather
because neither it nor any other part of the Act
goes far enough in equally providing benefits to
others similarly situated: that is, it is "under-inclu
sive". I would not consider it "appropriate and just
in the circumstances" to deprive those persons
qualified under section 32 of their benefits. I doubt
that such an approach is "appropriate and just" in
any case involving under-inclusive provisions for
social services or income insurance. 35 Instead I
consider it appropriate and just to make a declara
tion as to the entitlement of others to the same
benefits and leave it to Parliament to remedy the
situation in accordance with the Charter, either by
extending similar benefits to natural parents, or by
eliminating the benefits given to adoptive parents,
or by some provision of more limited benefits on
an equal basis to both adoptive and natural parents
in respect of child-care. I am not in effect telling
Parliament that it must follow one route or the
other: all I am determining is that if it is going to
provide such benefits it must provide them on a
non-discriminatory basis. I am prepared to assume
at this stage that Parliament will take the neces
sary action to render equal a system of benefits
found by this Court to be unequal. 36
I will therefore issue a declaration that, as long
as section 32 remains in its present form, a major
attachment claimant who is the natural father or
mother of a newborn child should be entitled to
benefits under the Unemployment Insurance Act,
1971 in respect of periods taken off work to care
for that child on the same terms as adoptive
parents are so entitled. As I interpret it the criteria
35 Califano case, supra, note 21. But cf. Attorney-General of
Nova Scotia et al. v. Phillips (1986), 34 D.L.R. (4th) 633
(N.S.C.A.).
36 See Hoogbruin v. A.G.B.C. (1985), 70 B.C.L.R. 1 (C.A.).
and conditions of benefits under section 32 are the
following:
(1) Fifteen weeks of benefits are provided for
either parent to stay home during the
seventeen week period after the child
arrives in the claimant's home, subject to
the limit in paragraph 22(3)(a) to a total of
fifteen weeks of the special benefits
referred to therein (those paid by reason of
pregnancy, placement for adoption, or ill
ness) during any benefit period. Such ben
efits are payable even though the claimant
is not available for work.
(2) Either parent if otherwise a qualified claim
ant can receive these benefits if it is "rea-
sonable" for that claimant to remain at
home by reason of the arrival in the home
of the child, but only so long as it remains
"reasonable" to do so.
(3) Not more than one parent can receive ben
efits with respect to the arrival in the home
of one child.
(4) Such benefits are paid in respect of child
care and not in respect of maternity.
The extension of an equal benefit under the law to
natural parents would mean providing them with
benefits on these same terms and conditions. As I
have indicated earlier, section 30 cannot be seen as
at least a partial equivalent of the section 32
benefits because by its own criteria it is related to
childbirth and its effects are predominantly in
relation to child-bearing rather than child-care.
It will be noted that if paragraph 22(3)(a) of the
Act were to be modified to cover all child-care
benefits in a manner similar to the present treat
ment of section 32 placement benefits, this would
still preclude the natural mother from any addi
tional weeks of benefits beyond fifteen. An adop
tive parent is not entitled to some or all of the
section 32 benefits if he or she has already, within
the same benefit period, had other special benefits
such as sickness benefits, as described in para-
graph 22(3)(a). Such restrictions might in one
sense equally be applied to natural parents. But
the practical effect of this in the normal case
would be that the natural mother, having taken
fifteen weeks of pregnancy benefits, would not be
able to take advantage of child-care benefits.
While perhaps amounting to formal equality, such
a regime could not produce equality of result as
the natural mother would virtually never have the
choice of taking child-care benefits in addition to
pregnancy benefits. Put another way, the natural
parents would not have the same freedom of choice
concerning child-care arrangements as do adoptive
parents. Therefore in any amended regime
designed to achieve equality for natural parents,
the natural mother should not be precluded from
entitlement to child-care benefits, in whole or in
part, by reason of having received pregnancy ben
efits within the same benefit period. This conclu
sion is predicated on my finding that section 30
benefits are essentially for pregnancy and cannot
be regarded as of more than incidental use for
child-care purposes. There will always be a ques
tion, however, as to whether it is reasonable for the
natural mother to take all or part of a further
fifteen weeks of child-care benefits.
Such a declaration does not conform precisely to
any of the alternatives requested by the plaintiff. It
is closest to the prayer for relief in paragraph
20(a) of the statement of claim which requests a
declaration of this nature but only in favour of
natural fathers and not both natural parents. How
ever in paragraph 20(a.1) of the statement of
claim as amended at trial it was proposed to give
child-care benefits to either natural parent as they
might choose, and this issue was canvassed fully in
argument. I am giving the declaration in the form
described above because I believe it is the one
which is most consistent with subsection 15(1) of
the Charter and which does not create new
inequalities as between natural parents and adop
tive parents.
" I have rejected the alternative forms of declara
tion requested by the plaintiff. That requested in
paragraph 20(a.1) of the statement of claim would
have converted section 32 into a general parental
benefit section by striking out any references to
adoption in it and in subsection 22(3). While it
would be possible for me to render valid a statu
tory provision by striking out words which cause it
to have an invalid effect 37 that would not have
been sufficient to extend section 32 benefits to
natural parents. Associated with this requested
relief was a request for a declaration that the term
"placement", as used in section 32 and in subsec
tion 22(3), means both placement of an adopted
child and the arrival in the home of its natural
parents of a newborn infant. I think it would be
only rarely that a court would attempt to provide a
definition for a term which Parliament has not
defined" as this really involves a form of
legislation. 39 Further, I am not prepared to declare
that the word "placement" has a meaning which it
is not capable of bearing. Placement refers to the
act of placing. I do not think it can be said, except
in a most figurative or metaphorical sense, that a
newborn child is "placed" with its natural parents.
As another alternative it was requested in para
graph 20(a.2) that words could be struck out of
the new section 32.1 so as to eliminate the condi
tions there for payment to a natural father, such
conditions being that the mother of the child be
either dead or unable to care for it. The result
would be that the natural father could claim ben
efits in any case where it was reasonable for him to
remain at home in order to care for the child. This
would provide no potential benefit to natural
mothers whatever. For reasons already stated, I
believe that in principle benefits should be avail
able to the natural mother as well as natural
father, as they may choose, on the same terms as
for adoptive parents.
37 See e.g. Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177.
38 See e.g. Califano case supra, note 21, at p. 92.
39 See Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at
p. 169.
I have rejected the alternative relief, sought in
paragraph 20(b) of the statement of claim. This
was for a declaration in effect entitling a natural
father to share fifteen weeks benefits with the
mother, on the birth of their child, the time to be
divided in accordance with their mutual wishes. By
this proposal any child-care time gained by the
father would be at the expense of the mother's
section 30 benefits. As I have said earlier, those
section 30 benefits are essentially distinct in pur
pose and effect from parental benefits and the
position of the father cannot be "equalized" by
depriving the natural mother of benefits the
rationale for which can only apply to her.
Professor S.A. Rae, Jr., of the Institute for
Policy Analysis of the University of Toronto testi
fied as to the estimated additional costs of various
regimes for child-care benefits for natural parents.
These were calculated on the basis of the estimat
ed cost for the existing system of fifteen weeks
pregnancy benefits being $502 million in 1986. I
have not taken his estimates into account in reach
ing my decision as to the appropriate declaration.
While cost implications might have been relevant
had section 1 been invoked by the defendants, I do
not think they can be relevant to the question of
whether a section 15 right has been infringed.
Further, although Professor Rae's evidence was
highly credible I do not believe that he provided a
calculation of possible costs for a regime with the
combination of criteria which I have found to be
ncessary to provide benefit of the law equal to that
in section 32.
Similarly 1 have concluded that the evidence
given by Dr. Marsden Wagner of Copenhagen,
Regional Officer for maternal and child health of
the World Health Organization is not directly
relevant to this matter. His evidence mostly per
tained to the regimes of maternity and child-care
benefits in the countries of eastern and western
Europe. Again, though highly interesting in com
paring benefits available in Canada to those in
other countries, such evidence cannot by its nature
be of help in determining whether there is an
infringement of a section 15 right.
The plaintiff in paragraph 20(c) has asked for
an order requiring the defendants to pay to him
the benefits to which he was entitled in accordance
with any declaration which I might issue. It fol
lows from what I have said that the Commission
erred in law in holding that he was not available
for work during the three week period when he
stayed at home to care for his newborn child. By
virtue of the Charter he was entitled to be treated
on the same basis as an adoptive parent in similar
circumstances, and such a person would, by section
32, be exempted from the requirement in section
25 of the Act that a claimant to be eligible for
benefits must be available for work. The Charter
requires that the plaintiff have the advantage of a
similar exception from the availability require
ment. Consistently with the provisions for benefits
for adoptive parents, the plaintiff would have had
to serve a two week waiting period during the
three weeks he stayed home, and then would have
been entitled to benefits for the last week if it had
been reasonable for him to remain at home during
that period. It is agreed that had he received
benefits they would have been in the amount of
$276 per week. I do not think I should order the
payment of this amount. Parliament has provided
a procedure for the determination of entitlement of
specific claims. This involves a decision by the
Commission, with rights of appeal to a Board of
Referees, to an Umpire, and ultimately by way of
judicial review under section 28 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10], to the
Federal Court of Appeal. While there is a duty on
the Commission to conduct itself consistently with
the decision which I am rendering in this case, the
better procedure will be for the Commission to
review the plaintiffs claim and determine it on the
basis that, if he otherwise meets the requirements
of the Act, he is entitled to benefits. The Commis
sion will have to determine, inter alia, if it was
reasonable for him to stay home when his wife was
already there, as that is a requirement of
section 32.
The plaintiff also asked in paragraph 20(d) that
I declare section 32 invalid but also declare that
such section should continue to have the same
force and effect until a time specified by the Court
deemed sufficient for the legislation to be amended
consistently with the Charter. Instead of taking
this approach, I canvassed with counsel the possi-
bility - of using my power under Rule 341A [Feder-
al Court Rules, C.R.C., c. 663; SOR/79-57, s. 8]
to suspend my judgment pending appeal, should I
be making a declaration which would imply the
need for legislative amendments. Counsel agreed
that this would be an appropriate step. I will
therefore so suspend my judgment in the anticipa
tion that in the interim necessary consideration
will be given to appropriate legislative action
should an appeal be taken and not succeed. This
will also permit the continuing payment of benefits
as now provided under the Act.
While the plaintiff asked for interest on any
moneys found to be owing to him, as I have not
adjudicated that question I need not consider the
matter of interest.
Costs
It was agreed that counsel would have a further
opportunity to address the question of costs after
reasons were issued. I will therefore defer the
determination of costs and the entry of formal
judgment until counsel have spoken to this matter.
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.