A-760-86
Marcelle Tétreault-Gadoury (Applicant)
v.
Canada Employment and Immigration Commis
sion (Respondent)
and
Leon Vellone, Rodrigue Deraiche and Andre
Manocchio (Mis -en-cause in their capacity as
members of the board of referees under the Unem
ployment Insurance Act)
and
Deputy Attorney General of Canada and Attorney
General of Canada (Mis -en-cause)
INDEXED AS: TÉTREAULT-GADOURY V. CANADA (CANADA
EMPLOYMENT AND IMMIGRATION COMMISSION)
Court of Appeal, Hugessen, Lacombe and Desjar-
dins JJ.—Montréal April 25; Ottawa, June 14, 15
and September 23, 1988.
Unemployment insurance — Application to review and set
aside board of referees decision confirming Commission's
exclusion of applicant from receiving ordinary unemployment
insurance benefits because of old age — Except for age,
applicant met all statutory conditions — Under s. 31, entitled
to special retirement benefit amounting to three weeks' benefits
— Applicant appealed on ground s. 31 contrary to s. 15 of
Charter — Legislative intent in adopting s. 31 was to avoid
overlapping with other social programs such as old age pen
sions — Age exclusion unreasonable and no longer justifiable
in view of changes to Act and Regulations since its introduc
tion in 1971 — Not shown legislator cannot achieve objectives
by applying other provisions of Act or Regulations — Board
erred in giving effect to provision inconsistent with Charter.
Constitutional law — Charter of Rights — Equality rights
— Discrimination by reason of age — Applicant, 65 years old,
lost employment — Employment and Immigration Commis
sion informed applicant not entitled to ordinary unemployment
insurance benefits due to age — Under s. 31 of Unemployment
Insurance Act entitled to special retirement benefit amounting
to three weeks' benefits — On appeal to board of referees on
ground s. 31 contrary to s. 15 of Charter, board upheld
Commission's decision without rendering opinion on constitu
tional point — Board of referees or umpire have power to find
legislative or regulatory provision of no force or effect as
inconsistent with Charter — Board erred in refusing to consid
er constitutional arguments — Age exclusion unreasonable
and irreconcilable with Charter s. 15 — S. 31 of Act declared
inoperative.
Federal Court jurisdiction — Appeal Division — Applica
tion to review and set aside decision of board of referees —
Whether applicant could submit question of constitutionality
of Unemployment Insurance Act, s. 31 by application to Court
under s. 28 — Applicant challenging board's decision without
appealing to umpire — In determining jurisdiction, irrelevant
whether application to review from board or umpire — Board
having erred in refusing to consider constitutional arguments
Appeal Court having jurisdiction.
In September of 1986, the applicant, then 65 years old, lost
her employment. The Employment and Immigration Commis
sion informed her that because of her age she was not entitled
to receive ordinary unemployment insurance benefits, but that
under section 31 of the Act, she was entitled to the special
retirement benefit amounting to three weeks of benefits. This
decision was appealed on the ground that section 31 was
contrary to section 15 of the Charter. The board of referees
upheld the Commission's decision without considering the con
stitutional arguments presented. The applicant challenged the
board's decision by this application for judicial review rather
than by appealing to an umpire.
Held, the application should be allowed.
Per Lacombe J.: Administrative tribunals, whether function
ing as a board of referees or as an umpire, have the power to
find that a legislative or regulatory provision is of no force or
effect because it is inconsistent with the Charter. The power to
find legislative or regulatory provisions unconstitutional is
inherent to any body exercising the power of adjudication
between the rights of parties in a particular instance. Accord
ingly, the board having erred in refusing to consider the
constitutional arguments submitted to it, the Court acquires
jurisdiction over the matter and must dispose of it.
Section 31 of the Act is declared inoperative as inconsistent
with the Charter. The complete denial of entitlement to unem
ployment insurance benefits to persons 65 years of age or older
could no longer be justified in light of recent changes made to
the Act and Regulations. The legislator could achieve his
objective of avoiding overlapping with other social programs
such as old age assistance by applying other relevant provisions
of the Act or Regulations.
Per Desjardins J. (concurring in the result): An agency
responsible for interpreting the law must deal with the issue
before it in its entirety. The determination of whether legisla
tion is of no force or effect as contrary to the Charter is a
responsibility of the agency, subject to judicial review.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Alcoholic Liquor Act, R.S.Q. 1941, c. 255.
An Act to amend the Quebec Pension Plan, S.Q. 1977, c.
24.
An Act to favour early retirement and improve the
surviving spouse's pension, S.Q. 1983, c. 12.
Canada Pension Plan, R.S.C. 1970, c. C-5 (as am. by
S.C. 1974-75-76, c. 4; 1986, c. 38).
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(1), 24(1).
Charter of Human Rights and Freedoms, R.S.Q. 1977, c.
C-12.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), ss. 91, 96.
Constitution Act, 1940, 3 & 4 Geo. VI, c. 36 (U.K.)
[R.S.C. 1970, Appendix II, No. 27] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 18), s. 91.2A.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 52(1).
Family Allowances Act, 1973, S.C. 1973-74, c. 44.
Family Allowances Regulations, C.R.C., c. 642.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28(1),(4).
Health Insurance Act, R.S.Q. 1977, c. A-29.
Income Tax Act, S.C. 1970-71-72, c. 63, ss. 109(1)(b),
117(1)(c).
Lord's Day Act, R.S.C. 1970, c. L-13.
Old Age Security Act, R.S.C. 1970, c. O-6.
Quebec Pension Plan, S.Q. 1965, c. 24, s. 119(a).
The Old Age Security Act, S.C. 1951, c. 18 (as am. by
S.C. 1957-58, c. 3; 1966-67, c. 65).
The Unemployment Insurance Act, 1940, S.C. 1940, c.
44 (as am. by S.C. 1955, c. 50).
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c.
48, ss. 19 (as am. by S.C. 1976-77, c. 54, s. 32), 22(2)
(as am. by S.C. 1976-77, c. 54, s. 34), 24(1), 25, 31 (as
am. by S.C. 1974-75-76, c. 80, s. 10), (I) (as am. by
S.C. 1976-77, c. 54, s. 39), (2),(4), 34 (as am. by S.C.
1976-77, c. 54, s. 41), 35(1) (as am. by S.C. 1976-77,
c. 54, s. 41), 91, 92(1) (as am. by S.C. 1980-81-82-83,
c. 158, s. 55), 94, 95(b) (as am. by S.C. 1976-77, c. 54,
s. 56), 96 (as am. by S.C. 1976-77, c. 54, s. 56).
Unemployment Insurance Benefit Entitlement Adjust
ments (Pension Payments) Act, S.C. 1987, c. 17.
Unemployment Insurance Regulations. C.R.C., c. 1576,
ss. 57(1),(2)(e),(3)(j) (as am. by SOR/87-188), 66(1),
70(4) (as am. by SOR/82-1046, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Big M. Drug Mart Ltd., et al., [1985] 1 S.C.R. 295;
Zwarich v. Canada (Attorney General), [1987] 3 F.C.
253 (C.A.); Nixon v. Canada (Canada Employment and
Immigration Commission) (A-649-86 and A-728-86,
Urie, Mahoney and Hugessen JJ., judgment dated
14/12/87, (C.A.), not yet reported); Douglas/Kwantlen
Faculty Assn. v. Douglas College (1988), 21 B.C.L.R.
(2d) 175 (C.A.); Union des employés de commerce, local
503 c. W.E. Bégin Inc., (December 19, 1983, Québec,
200-09-000-709-821, J.E. 84-65 (C.A.) not reported); R.
v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and
Art Ltd., [1986] 2 S.C.R. 713; Northern Telecom
Canada Ltd. v. Communications Workers of Canada,
[1983] 1 S.C.R. 733; Théberge (J.R.) Ltée v. Syndicat
National des Employés de l'Aluminum d'Arvida Inc. et
al, [1966] S.C.R. 378; Roncarelli v. Duplessis, [1959]
S.C.R. 121; P.P.G. Industries Canada Ltd. v. The Attor
ney General of Canada, [1976] 2 S.C.R. 739; Capital
Cities Communications Inc. et al. v. Canadian Radio-
Television Commn., [1978] 2 S.C.R. 141; Innisfil (Cor-
poration of the Township) v. Corporation of Township of
Vespra et al., [1981] 2 S.C.R. 145; Northern Telecom
Canada Ltd. v. Communications Workers of Canada,
[1980] 1 S.C.R. 115; Côté v. Canada Employment and
Immigration Commission (1986), 69 N.R. 126 (F.C.A.);
Bliss v. Attorney General (Can.), [1979] 1 S.C.R. 183;
Attorney General of Canada v. Walford, [1979] 1 F.C.
768 (C.A.); Hills v. Canada (Attorney General), [1988] 1
S.C.R. 513.
DISTINGUISHED:
Canada (Attorney General) v. Vincer, [1988] 1 F.C. 714
(C.A.); Canada (Attorney General) v. Alli, [1988] 3 F.C.
444 (C.A.); Canada (Attorney General) v. Sirois (A-559-
86, Pratte J., judgment dated 24/6/88, not yet reported);
Schachter v. Canada, [1988] 3 F.C. 515 (T.D.); Sémi-
naire de Chicoutimi v. La Cité de Chicoutimi, [1973]
S.C.R. 681.
REFERRED TO:
Ontario Public Service Employees' Union v. Algonquin
College of Applied Arts and Technology, Divisional
Court (Steele, Holland and White JJ., April 16, 1987,
not yet reported); Moore v. B.C. (Govt.) (1988), 23
B.C.L.R. (2d) 105 (C.A.); Terminaux portuaires du
Québec v. Association des employeurs maritimes
(A-1080-87, Pratte, Marceau and Desjardins JJ., judg
ment dated 11/8/88 (C.A.), not yet reported).
AUTHORS CITED
Ouellette, Yves "La Charte canadienne et les tribunaux
administratifs" (1984), 18 R.J.T. 295.
Duplessis, Yvon "Un tribunal inférieur peut-il se pro-
noncer sur une disposition législative ultra vires"
(1984), 15 R.G.D. 127.
Pépin, Gilles "La compétence des cours inférieures et des
tribunaux administratifs de stériliser, pour cause d'in-
validité ou d'ineffectivité, les textes législatifs et
réglementaires qu'ils ont mission d'appliquer" (1987),
47 R. du B. 509.
Pinard, Danielle "Le pouvoir des tribunaux administratifs
québécois de refuser de donner effet à des textes qu'ils
jugent inconstitutionnels" (1987), 33 McGill L.J. 170.
Garton, Graham R., Charter Issues in Civil Cases,
Toronto: Carswell, 1988.
Gibson, Dale, The Law of the Charter: General Princi
ples, Toronto: Carswell, 198 S.
Sack, Jeffrey "Procedures in Charter Cases; Procedures
and Remedies—Examination of Questions Pertaining
to: WHICH" (1986), Charter Cases, Causes invo-
quant la Charte; Cdn. Bar Assoc. 11.
Canada. Law Reform Commission. Administrative Law
Series, Study Paper: Council on Administration,
Ottawa: Minister [sic] of Supply and Services Canada,
1980.
COUNSEL:
Jean-Guy Ouellet and Gilbert Nadon for
applicant.
Carole Bureau and Claude Joyal for the
respondent and the mis -en-cause, the Deputy
Attorney General of Canada and the Attor
ney General of Canada.
SOLICITORS:
Campeau, Cousineau & Ouellet, Montréal,
for applicant.
Deputy Attorney General of Canada for
respondent and the mis -en-cause, the Deputy
Attorney General of Canada and the Attor
ney General of Canada.
The following is the English version of the
reasons for judgment rendered by
LACOMBE J.: The applicant was born on Sep-
tember 8, 1921. On September 8, 1986, therefore,
she was 65 years old. On September 19, 1986 she
lost her employment as a co-ordinator with the
Association -locataires Villeray Inc., which she
had held since March 24, 1986 at a weekly salary
of $301.60. On September 22, 1986 she filed an
application for benefits pursuant to the Unemploy
ment Insurance Act, 1971 [S.C. 1970-71-72, c.
48]. She met all the other conditions set by the Act
except for being excluded because of her age:
under section 24, she would have been entitled to
unemployment insurance benefits amounting to
$180 a week for a period of several weeks.
Additionally, before obtaining employment with
the Association -locataires Villeray Inc., she had
received unemployment insurance benefits of $185
a week for 37 weeks, from June 16, 1985 to March
22, 1986.
On October 14, 1986 the Employment and
Immigration Commission informed her that
because of her age she was no longer entitled to
receive ordinary unemployment insurance benefits,
but that under section 31 of the Act she was
entitled to the special retirement benefit of $540,
amounting to three weeks of benefits.
The applicant appealed from this decision of the
Commission to a board of referees, on the ground
that section 31 of the Act was contrary to 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.)]. At the
hearing, the applicant stated that since her last
birthday she had received $481 a month in pension
payments, but did not indicate the nature of these
payments or give any details about them.' She also
stated that she was actively looking for work. In
support of her position relating to the Charter she
entered certain documents in evidence, including
extracts from the minutes of a subcommittee of
the House of Commons dealing with mandatory
retirement, extracts from the report of the Forget
Commission, a working paper titled "Equality
Issues in Federal Law" published by the Depart
ment of Justice of Canada, and so on. Without
rendering any decision on the constitutional point,
the board of referees on December 12, 1986
upheld the Commission's decision that because of
her age the applicant was no longer entitled to
receive ordinary unemployment insurance benefits.
Without bothering with a subsequent appeal to
an umpire, the applicant by her application to
review and set aside, under section 28 of the
Federal Court Act [R.C.S. 1970 (2nd Supp.), c.
10], directly challenged the decision of the Board
' From the documentation in the record it can be extrapolat
ed that she was receiving the base amount of the old age
pension payable to her in December 1986 ($294.43 a month),
the balance of $186.57 coming from a pension she received
from the Quebec Pension Plan.
of Referees in this Court and again raised the
inconsistency of section 31 of the Act with section
15 of the Charter. By an interlocutory decision
rendered by a judge of this Court, the parties were
authorized to submit whatever evidence they
thought proper in connection with the constitution
al question raised by the appeal. This evidence, by
affidavit and by the filing of copious documenta
tion, was entered in the record of the Court.
Preliminary question
Before considering the basic issue there is the
question of whether the substantive point raised
can be decided using the remedy chosen by the
applicant. In other words, could the applicant ask
the Board of Referees to decide on the constitu
tional validity of section 31 of the Act, and could
she submit the same question to the Court by an
application to review and set aside pursuant to
section 28 of the Federal Court Act? The jurisdic
tion of the lower courts, and in particular of
administrative tribunals, to decide questions
involving the Canadian Charter of Rights and
Freedoms has been a matter of dispute both in
case law and in legal literature. 2
In its subsection 52(1), the Constitution Act,
1982 [Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] provides:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
In R. v. Big M Drug Mart Ltd. et al., [1985] 1
S.C.R. 295, Dixon C.J. of the Supreme Court of
Canada wrote at page 353:
If a court or tribunal finds any statute to be inconsistent with
the Constitution, the overriding effect of the Constitution Act,
2 See, for example, Yves Ouellette, "La Charte canadienne et
les tribunaux administratifs" (1984), 18 R.J.T. 295, at pp. 321
et seq; Yvon Duplessis, "Un tribunal inférieur peut-il se pro-
noncer sur une disposition législative ultra vires?" (1984), 15
R.G.D. 127; Gilles Pépin, "La compétence des cours inférieures
et des tribunaux administratifs de stériliser, pour case d'invali-
dité ou d'ineffectivité, les textes législatifs et réglementaires
qu'ils ont mission d'appliquer" (1987), 47 R. du B. 509; Gilles
Pépin, "La compétence du Tribunal du travail de juger une loi
ineffective (inopérante)" (1988), 48 R. du B. 125; Danielle
Pinard, "Le pouvoir des tribunaux administratifs québécois de
refuser de donner effet à des textes qu'ils jugent inconstitution-
nels" (1987), 33 McGill L.J. 170.
1982, s. 52(1), is to give the Court not only the power, but the
duty, to regard the inconsistent statute, to the extent of the
inconsistency, as being no longer "of force or effect".
This statement was certainly an obiter dictum
as regards the reference to administrative tri
bunals, since the case concerned the power of a
court of inferior criminal jurisdiction to rule on the
validity of the Lord's Day Act [R.S.C. 1970, c.
L-13], in light of the provisions of the Charter.
In reliance on this guideline given by the
Supreme Court of Canada, this Court has twice
held that under the Unemployment Insurance Act,
1971 a board of referees and an umpire have the
power to rule on application of the Charter. In
Zwarich v. Canada (Attorney General), [1987] 3
F.C. 253, Pratte J. wrote for the Court at page
255:
It is clear that neither a board of referees nor an umpire have
the right to pronounce declarations as to the constitutional
validity of statutes and regulations. That is a privilege reserved
to the superior courts. However, like all tribunals, an umpire
and a board of referees must apply the law. They must,
therefore, determine what the law is. And this implies that they
must not only construe the relevant statutes and regulations but
also find whether they have been validly enacted. If they reach
the conclusion that a relevant statutory provision violates the
Charter, they must decide the case that is before them as if that
provision had never been enacted. The law on this subject, as I
understand it, was clearly and accurately stated by Macfarlane
J. A. of the Court of Appeal of British Columbia in Re
Schewchuk and Ricard; Attorney-General of British Columbia
et al; Intervenors: 2
2 (1986), 28 D.L.R. (4th), at pp. 439-440.
It is clear that power to make general declarations that
enactments of Parliament or of the Legislature are invalid is
a high constitutional power which flows from the inherent
jurisdiction of the superior courts.
But it is equally clear that if a person is before a court
upon a charge, complaint, or other proceeding properly
within the jurisdiction of that court then the court is com
petent to decide that the law upon which the charge, com
plaint or proceeding is based is of no force and effect by
reason of the provisions of the Canadian Charter of Rights
and Freedoms, and to dismiss the charge of complaint or
proceeding. The making of a declaration that the law in
question is of no force and effect in that context, is nothing
more than a decision of a legal question properly before the
court. It does not trench upon the exclusive right of the
superior courts to grant prerogative relief, including general
declarations.
It should be noted that in that case it was
argued before both the Board of Referees and the
Umpire that a provision of the Unemployment
Insurance Act, 1971 was inconsistent with two
sections of the Charter, and both these tribunals,
maintaining that they lacked jurisdiction, declined
to dispose of the point. A few months later, in
Nixon v. Canada (Canada Employment and
Immigration Commission) (A-649-86 and
A-728-86, Urie, Mahoney and Hugessen JJ., judg
ment dated 14/12/87, not yet reported), this Court
reiterated:
The learned Umpire declined to deal with that argument on
the ground that he was not a tribunal of competent jurisdiction
under section 24. In that, he was clearly wrong. This Court's
unreported decision in Zwarich v. A. G. of Canada, file
A-521-86, rendered June 17, 1987, after the Umpire's decision,
is conclusive of that.
It should be recalled that this judgment was
rendered after the majority decision of the Court
in Canada (Attorney General) v. Vincer, [1988] 1
F.C. 714 (C.A.) 3 which held that a review com
mittee created pursuant to the Family Allowances
Regulations [C.R.C., c. 642] was not a competent
court for the purposes of subsection 24(1) of the
Charter.
Vincer does not apply to the case at bar. In that
case, the review committee decided to award a
father, who was separated from his wife, half the
allowances payable to the children of whom he had
joint custody with his wife, though the legislative
and regulatory provisions (which the committee
held were in breach of the Charter) did not
authorize such a compromise solution but instead
provided that the allowances should be paid to the
mother, and in exceptional cases to the father, but
under very specific circumstances. The committee
had thus ordered the departmental officials to do
something not authorized by the Act; in doing this,
it ordered a remedy which it thought was fair and
reasonable under subsection 24(1) of the Charter,
although the committee only had jurisdiction to
decide appeals brought to it consistent with the
Act [Family Allowances Act, 1973, S.C. 1973-74,
c. 44], and Regulations. In Alli, a similar commit
3 This decision was followed in Canada (Attorney General) v.
Alli, [1988] 3 EC. 444 (C.A.) and Canada (Attorney General)
v. Sirois (A-559-86, Pratte J., judgment dated 24/6/88, not yet
reported).
tee held inter alio that a provision of the Act
directing that family allowances should be paid to
a parent with visitor status but not to a resident
who was awaiting a determination of political
refugee status was discriminatory under section 15
of the Charter. Here again the committee exceed
ed its jurisdiction, extending to residents benefits
granted by the Act to visitors. It ordered redress
within the meaning of subsection 24(1) of the
Charter. The Court held that the review commit
tee did not have jurisdiction to do this because it
was not a tribunal competent to order a remedy
within the meaning indicated in subsection 24(1)
of the Charter. Pratte J., writing for himself and
his brother judges Urie and Stone JJ., said at
pages 450-451:
It is certainly difficult to reconcile what I said in Zwarich
with what was said in Vincer. However, for the purposes of this
case, it is not necessary to choose between those two apparently
conflicting decisions since there is nothing in Zwarich that can
help the respondent. Clearly, for the reasons given by Marceau
J. and Stone J. in Vincer, an Appeal Committee established
pursuant to section 15 of the Family Allowances Act, 1973 is
not a "tribunal of competent jurisdiction" within the meaning
of section 24 of the Charter. Nothing was said on this subject in
Zwarich. It was held in Zwarich that a tribunal, in making a
decision that it is empowered to make, may ignore the statutory
provisions which in its view, contravene the constitution and
are, for that reason, "of no force or effect". That proposition
has no application here. Counsel for the respondent agreed that
paragraph 3(1)(a) and subparagraph 3(1)(b)(i) are not dis
criminatory. His only contention in this regard was that sub-
paragraph 3(1)(b)(ii) was too narrowly drawn and should, in
order not to discriminate, have included persons in the situation
of the respondent. If that submission were well founded, sub-
paragraph 3(1)(b)(ii) would contravene section 15 of the
Charter and be, for that reason, of "no force or effect". This, of
course, would not help the respondent who cannot succeed
unless the Appeal Committee had the right, in deciding her
appeal, to apply a new version of subparagraph 3(1)(b)(ii)
incorporating the changes necessary to make it constitutional.
Obviously, the Committee had no such right.
In the case at bar it is subsection 52(1) of the
Constitution Act, 1982 that is relied on, not sub
section 24(1) of the Charter. The applicant has not
asked the Board of Referees or this Court to find
that section 31 of the Unemployment Insurance
Act, 1971 should be amended to make it consistent
with section 15 of the Charter or to order a
remedy that would require the adoption of appro
priate legislative adjustments. 4
Rather, the only question is whether section 31
of the Act is of no force or effect as a whole
because it is inconsistent with section 15 of the
Charter. The applicant is not asking the Court, to
take an extreme example, to give her under the
Charter the same benefits the Act gives a pregnant
claimant or an adoptive mother. She is only seek
ing a finding, consistent with the requirements of
the Charter, that section 31 of the Act is of no
force or effect because it deprives her solely on
account of her age of the unemployment insurance
benefits given to other claimants who are in the
same situation as she is, that is, unemployed and
equally entitled to benefits.
The provisions giving boards of referees and
umpires jurisdiction contain no limitations such as
that they shall decide solely in accordance with the
Act or Regulations, as was the case in Vincer
under the 1973 Family Allowances Act and Regu
lations. All section 94 of the Act does is to state,
without more, that an appeal can be made to a
Board of Referees from any decision of the
Commission. 5 Section 95 further provides for a
subsequent appeal to an umpire, in particular in
paragraph (b), on the ground that "the board of
referees erred in law in making its decision or
order, whether or not the error appears on the face
4 This was the case in Schachter v. Canada, [1988] 3 F.C.
515 (T.D.), in which Strayer J. awarded the natural father of a
child the same benefits given by section 32 of the Unemploy
ment Insurance Act, 1971 to an adoptive father, in declaratory
conclusions suggesting that the Act should eventually be
amended; this explains the relevance of his observations that in
such a case it was advisable to proceed by a declaratory action
under section 18 of the Federal Court Act rather than by an
appeal to the umpire under the Unemployment Insurance Act,
1971.
5 94. (1) The claimant or an employer of the claimant may
at any time within thirty days from the day on which a decision
of the Commission is communicated to him, or within such
further time as the Commission may in a particular case for
special reasons allow, appeal to the board of referees in the
manner prescribed.
(2) A decision of a board of referees shall be recorded in
writing and shall include a statement of the findings of the
board on questions of fact material to the decision.
on the record; '. 6 Additionally, under section 96
"An umpire may decide any question of law or
fact that is necessary for the disposition of any
appeal taken pursuant to section 95 and may
dismiss the appeal, give the decision that the board
of referees should have given, ... confirm, rescind
or vary the decision of the board of referees in
whole or in part."
This means that the Board of Referees itself has
jurisdiction to decide any question of law which,
because there is no specific provision in the Act,
cannot be confined solely to questions of law
regarding the implementation of the Unemploy
ment Insurance Act, 1971 and its Regulations, but
must include any question of law involving the
implementation of any other Act, and of course of
the supreme law of Canada, of which the Canadi-
an Charter of Rights and Freedoms is a part. It is
often said that subsection 24(1) of the Charter
does not confer particular jurisdiction on the
courts, in addition to or apart from the jurisdiction
conferred on them by their enabling legislation.
The converse of this proposition is that it also
cannot be used to limit such jurisdiction. If a court
is not ordinarily competent to issue a declaratory
judgment, it does not acquire such a power
because it has been asked to rule on application of
the Charter. Similarly, if an administrative tri
bunal has jurisdiction under its enabling Act to
rule on a question of law, it does not lose that
jurisdiction because the question of law to be
decided involves considerations which call for
applying a provision of the Charter. Deciding that
a provision of the Act is of no force or effect
because it is inconsistent with the Charter is a
question of law like any other which boards of
referees have to decide, even though their mem
bers do not have to possess legal training as such.
6 95. An appeal lies as of right to an umpire in the manner
prescribed from any decision or order of a board of referees at
the instance of the Commission, a claimant, an employer or an
association of which the claimant or employer is a member, on
the grounds that
(b) the board of referees erred in law in making its decision
or order, whether or not the error appears on the face of
the record; or ...
Though their constitution is of a special nature,'
boards of referees are not created by the Employ
ment and Immigration Commission. As we have
seen in section 96 of the Act, they may render
decisions and issue orders which the Commission
may appeal to an umpire. Under subsection 66(1)
of the Unemployment Insurance Regulations
[C.R.C., c. 1576], "A board of referees shall give
each of the parties interested in an appeal a
reasonable opportunity to make representations
concerning any matter before the board".
Since Big M Drug Mart Ltd., supra, the courts
of inferior jurisdiction in penal matters have been
recognized as competent courts for the purposes of
subsection 24(1) of the Charter. This competence
is part of the concept of a full and complete
defence.
It is hard to see that a board of referees should
allow parties the right to present their "representa-
tions concerning any matter before [the Board]",
yet that such an obligation should cease as soon as
the argument raises the invalidity of a provision of
' Unemployment Insurance Act, 1971:
91. (1) There shall be boards of referees, consisting of a
chairman and one or more members chosen from employers
or representatives of employers and an equal number of
members chosen from insured persons or representatives of
insured persons.
(2) The Chairmen of boards of referees shall be appointed
by the Governor in Council for a term of three years subject
to renewal on expiry, shall cease to hold office on attaining
the age of seventy-five years and may be removed at any
time by the Governor in Council for cause.
(3) Panels of employers and representatives of employers
and insured persons and representatives of insured persons
shall be established by the Commission, and the members of
the boards of referees shall be selected from those panels in
the manner prescribed.
(4) There shall be paid such remuneration to the chair
man and members of a board of referees and such travelling,
subsistence and other allowances, including compensation for
loss of remunerative time, to a chairman or member of a
board of referees or to-any other person required to attend
before the board, and such other expenses in connection with
the operation of a board of referees as the Treasury Board
approves.
(5) Subject to this section, the Commission may, with the
approval of the Governor in Council, make regulations for
the constitution of boards of referees, including the appoint
ment of the members thereof, the number of members con
stituting a quorum, and the practice and procedure for
proceedings before a board of referees.
the Act or Regulations in light of the requirements
of the Charter. The Charter must be equally avail
able to all litigants, those who must defend them
selves in penal tribunals before which they appear
as well as those who have actions to bring in the
civil or administrative tribunals against acts of the
government or when legislation invades their rights
and freedoms. So long as the procedure in such
tribunals presents no obstacle to their doing so,
litigants should be able to assert the rights secured
by the Charter in the natural forum to which they
can apply. For a claimant, the usual procedure for
objecting to the decisions of the Commission is,
first, an appeal to a board of referees, then to an
umpire, and thence to the Court under section 28
of the Federal Court Act, or directly from the
board of referees to the Federal Court of Appeal.
These are speedy, inexpensive and readily access
ible proceedings, which should be within the
immediate reach of the persons for whom they
were enacted. The right to be heard by each and
every one of these tribunals includes the right to
effectively present arguments regarding the
supremacy of the Constitution of Canada.
Zwarich, supra, treated boards of referees and
umpires as more or less on the same footing as
regards their power to find legislative or regulatory
provisions of no force or effect due to their incon
sistency with a provision of the Charter. These
judicial or quasi-judicial bodies are similar in insti
tutional and functional terms, though there may
be differences between them in the exercise of
their jurisdiction, and under subsection 92(1) of
the Act umpires are appointed from among judges
of the Federal Court of Canada by the Governor
General in Council, who may also determine their
powers. 8 In any case, they are administrative tri
bunals with the same type of jurisdiction, but at
different levels of appeal. To determine the juris
diction of this Court under section 28 of the
Federal Court Act, no distinction is necessary
depending on whether the application to review
s 92. (1) The Governor in Council may, from among the
judges of the Federal Court of Canada, appoint such number of
umpires as he considers necessary for the purposes of this Act
and, subject to this Act, may prescribe their jurisdiction.
and set aside was made against a decision of an
umpire or made directly against that of the board
of referees. In this connection it is paradoxical, if
not significant, to note that subsection 70(4) of the
Unemployment Insurance Regulations contem
plates the possibility of an umpire finding a provi
sion of the Act or the Regulations to be ultra vires
and directs that in such a case the payment of
benefits in other cases shall be suspended until the
appeal decision has been rendered by the Federal
Court of Appeal. 9 This provision is of course not a
basis for saying that a board of referees can make
declaratory judgments, valid erga omnes and plac
ing in question the constitutional validity of the
Act or the Regulations, for a breach of the provi
sions of the Charter. It may even be that subsec
tion 70(4) is itself of questionable validity. This
does not have to be decided. All that has to be said
for the moment is that in this regulatory provision,
which dates from November 26, 1982 (SOR/82-
1046), after the Charter came into effect, the
possibility was considered that an administrative
tribunal like an umpire could find a provision of
the Act itself to be ultra vires. A provision of the
Regulations may be ruled ultra vires; but if this is
possible for a provision of the Act itself, such a
ruling may well be possible on the ground of
inconsistency with the requirements of the Chart
er. This means that there is nothing incongruous in
recognizing that an administrative tribunal, like a
board of referees or an umpire, has the power to
find that a legislative or regulatory provision is of
no force or effect because it is inconsistent with the
Canadian Charter of Rights and Freedoms. The
power to refuse to give effect to a legislative or
regulatory provision which has been found to be
unconstitutional is inherent in any body exercising
9 70. (4) Where, in respect of a claim for benefit, an umpire
has declared a provision of the Act or these Regulations to be
ultra vires and an application is made by the Commission in
accordance with the Federal Court Act to review the decision
of the umpire, benefits are not payable in respect of any claim
for benefit made subsequent to the decision of the umpire until
the final determination of the claim under review, where the
benefit would not otherwise be payable in respect of any such
subsequent claim if the provision had not been declared ultra
vires.
the power of adjudication between the rights of
parties in a particular instance.
In Douglas/Kwantlen Faculty Assn. v. Douglas
College (1988), 21 B.C.L.R. (2d) 175, the British
Columbia Court of Appeal made a ruling similar
to this Court in Zwarich, supra, recognizing that
an arbitrator sitting pursuant to the Labour Code
of that province had a right to determine the
invalidity of a clause of a collective agreement
under the Charter. In its joint opinion, the Court
said at pages 184-185:
The third issue on this appeal concerns the right of the
arbitrator to consider the question of whether the provision for
mandatory retirement was void under the Charter. No relief
was sought under s. 24 of the Charter and, therefore, the issue
as to whether or not an arbitrator is a court of competent
jurisdiction to grant Charter relief under that provision does
not arise.
It is the duty of an arbitrator to decide questions submitted
according to the legal rights of the parties and to decline to
make an award enforcing an illegal contract. In David Taylor
& Son Ltd. v. Barnett Trading Co., [1953] 1 W.L.R. 562,
[1953] 1 All E.R. 843 (C.A.), Lord Denning stated at page
847:
There is not one law for arbitrators and another for the
court, but one law for all. If a contract is illegal, arbitrators
must decline to award on it just as the court would do.
The remedy that would flow from a conclusion that art 4.04,
the mandatory provision of the collective agreement, infringed
s. 15(1) of the Charter would be to declare that article of the
collective agreement of no force and effect pursuant to s. 52 of
the Charter, something which in our opinion is within the
jurisdiction of an arbitrator in the circumstances of this par
ticular case.
Similarly, as Mr. Pinard observes in his article
cited above, at pages 181 and 187, notes 44 and
74, which also reviews the case law of the Quebec
courts on the point, the Quebec Court of Appeal
acknowledged in Union des employés de com
merce, local 503 c. WE. Bégin Inc. 10 that an
arbitration tribunal had the same power to refuse
to give effect to a clause of a collective agreement
which conflicted with a paramount provision of the
Charter of Human Rights and Freedoms, R.S.Q.
1977, c. C-12. "It was not the arbitrator", Tyndale
1 0 December 19, 1983, Québec, 200-09-000-709-821, J.E.
84-65 (C.A.) not reported (leave to appeal to the Supreme
Court of Canada denied, [1984] 1 S.C.R. v).
J. said, "who modified the agreement, but a law of
public order, which rendered null the discriminato
ry aspect of the clauses; and the arbitrator was
therefore entitled to disregard them, and to decide
the grievances as though they were not there".
The Board of Referees accordingly erred in
refusing to consider the constitutional arguments
submitted to it by the applicant. That being so, the
Court must consider and dispose of them.
It is accordingly necessary to determine the
constitutional validity of section 31 of the Unem
ployment Insurance Act, 1971. It reads as follows:
31. (1) Notwithstanding section 19, a benefit period shall
not be established for a claimant if at the time he makes an
initial claim for benefit he is sixty-five years of age or over.
(2) An insured person who makes a claim for benefit and
proves that he
(a) is sixty-five years of age or over,
(b) has had twenty or more weeks of insurable employment
(i) in the fifty-two week period immediately preceding the
week in which he makes the claim, or
(ii) in the period between the commencement date of his
last benefit period and the week in which he makes the
claim,
whichever period is the shorter, and
(c) has not previously been paid an amount under this
subsection as it now reads or as it read before January 1,
1976,
shall, subject to sections 48 and 49, be paid an amount equal to
three times the weekly rate of benefit provided under
section 24.
(3) Subsections (2) to (5) of section 18 apply to the period
mentioned in subparagraph (i) of paragraph (b) of subsection
(2) with such modifications as the circumstances require.
(4) Any benefit period established for a claimant under this
Part, if not earlier terminated under this Part, terminates at the
end of the week in which he attains the age of sixty-five years.
(5) If the total benefit paid to a major attachment claimant
in a benefit period terminated under subsection (4) is less than
an amount that is equal to three times the weekly rate of
benefit payable to him in that benefit period, that claimant
shall, subject to sections 48 and 49 but notwithstanding any
other provision of Part II, be paid benefit at the weekly rate of
benefit payable to him in that benefit period for the number of
weeks that is required to ensure that the total benefit paid to
him in respect of that benefit period is not less than the
aforementioned amount.
Additionally, subsection 15(1) of the Canadian
Charter of Rights and Freedoms states:
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.
Historical review
The Unemployment Insurance Act dates from
1940—S.C. 1940, c. 44 [The Unemployment In
surance Act, 19401—after the constitutional
amendment made to section 91 of the Constitution
Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C.
1970, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1)], by the Constitution
Act, 1940 [3 & 4 Geo. VI, c. 36 (U.K.) [R.S.C.
1970, Appendix II, No. 27] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the
Constitution Act, 1982, Item 18)], section 91.2A.
It was extensively amended in 1955 and in 1971:
S.C. 1955, c. 50 and S.C. 1970-71-72, c. 48.
The aim of the Act, which has always been the
same however amended, is to create a social insur
ance plan to compensate unemployed workers for
loss of income from their employment and to
provide them with economic and social security for
a time, thus assisting them in returning to the
labour market."
Ineligibility for unemployment insurance ben
efits on grounds of age appeared for the first time
in the Unemployment Insurance Act, 1971. In the
1960's, commissions of inquiry were created and
reports made to the federal government, which in
1970 published a white paper on "Unemployment
Insurance in the 70's" which preceded the adop
tion of the new Act in June 1971. Under section
31, a claimant became ineligible for benefits if he
was 70 years of age or over or if he was already
entitled to receive a pension or a retirement annui
ty under the Canada Pension Plan or the Quebec
Pension Plan. He was paid a lump sum amounting
to three weeks' benefits. Under these plans, which
'] Bliss v. Attorney General (Can.), [1979] 1 S.C.R. 183, at
pp. 185-186; Attorney General of Canada v. Walford, [1979] 1
F.C. 768 (CA); Hills v. Canada (Attorney General), [1988] 1
S.C.R. 513, at p. 534.
both date from 1965, a pension or a retirement
annuity was payable to a contributor who had
attained the age of 70 years or to one 65 years old
who had given up his regular employment. 12 The
philosophy underlying the adoption of section 31 in
the Unemployment Insurance Act, 1971 was that
the persons covered by this new measure were no
longer, or should no longer be regarded, as form
ing part of the active population. The intent was
by this means to avoid unemployment insurance
overlapping with other government social pro
grams. Older persons, who had retired from the
labour market, were regarded as abusing the
unemployment insurance scheme and receiving an
unfair proportion of benefits compared with other
unemployed persons, to add to their pension
incomes or take their place. It was felt that such
persons had left the labour market more or less
voluntarily or, once driven out of it by a period of
unemployment, were no longer interested in or
capable of returning, nor of looking for new
employment while collecting unemployment insur
ance benefits. The new legislation was designed to
help remedy such abuses.
Though the introduction of section 31 into the
Unemployment Insurance Act, 1971 was not for
mally connected with the payment of old age
pensions, the government took this factor into
account in developing its policy for rationalizing
its social programs. The old age security scheme
had existed since 1927 in a joint plan with the
provinces. The first federal statute on old age
security was adopted in 1951, S.C. 1951, c. 18
[The Old Age Security Act]. It provided for the
payment of a pension to persons 70 years old who
had lived in Canada for twenty years. The length
of the residence period was lowered to ten years in
1957: S.C. 1957-58, c. 3. In 1965, the qualifying
age was reduced to 65 years. In 1966 the federal
government set up the guaranteed monthly supple
ment program which added a supplementary pay
ment to the old age pension for recipients whose
2 "Is retired from regular employment", in the wording of
the federal statute, S.C. 1964-1965, c. 51, sub-paragraph
44(1)(a)(i), and "is retired from regular employment" in the
Quebec Pension Plan, S.Q. 1965, c. 24, subsection 119(a).
pension was their principal or only source of
income (S.C. 1966-67, c. 65).
Section 31 of the Act was amended in 1975
(S.C. 1974-75, c. 80, s. 10). A single ineligibility
factor was applied: the claimant's age, reduced
from 70 to 65 years. The result was the disappear
ance of the other factor based on a claimant's right
to receive a pension from one or other of the
pension plans, federal or provincial, which came
into effect at age 70 or at age 65 if the recipient
had withdrawn from the labour market, or at least
from his regular employment. Section 31 has
remained unchanged since that time. At the same
time, pension plans have been amended, the
Canada Plan in 1975 (S.C. 1974-75-76, c. 4) and
the Quebec Plan in 1977 (S.Q. 1977, c. 24) [An
Act to amend the Quebec Pension Plan], to make
pensions payable at age 65.
The old option of collecting pensions after
reaching age 65 but retiring from regular employ
ment has been eliminated from both statutes. In
1983, by the adoption of An Act to favour early
retirement and improve the surviving spouse's
pension (S.Q. 1983, c. 12), the Quebec Plan made
possible the payment of early retirement annuities
with appropriate actuarial adjustments at age 60.
The Canada Pension Plan was amended in the
same way in 1986: S.C. 1986, c. 38.
Since January 5, 1986, by an amendment to
section 57 of the Regulations (SOR/86-58), pen
sions arising out of employment or paid under one
or other of these government pension plans are
treated as earnings and deducted from unemploy
ment insurance benefits. A further amendment to
section 57 of the Regulations, in effect on April 5,
1987, allows a person who has retired and is
receiving a pension to return to the labour market.
If he has been working long enough to be again
eligible for unemployment insurance benefits, he
will receive the full amount of benefits in his next
period of unemployment without deductions being
made for pensions paid to him since he retired
from his first job.
In recent years task forces and commissions of
inquiry, such as the report of the task force on
Unemployment Insurance in the 1980s, the Com
mission of Inquiry on Unemployment Insurance
(Forget Commission) in December 1986 and the
Parliamentary Standing Committee on Labour,
Employment and Immigration throughout 1987,
have recommended to the federal legislator the
abolition of ineligibility for unemployment insur
ance benefits on account of age and the elimina
tion from the special retirement benefit of a lump
sum amounting to three weeks' benefits at age 65
to take the place of regular benefits. However, in a
formal ministerial statement given in the House of
Commons on May 15, 1987 the federal govern
ment decided to reject these recommendations and
to maintain the status quo on keeping section 31
of the Act in its present form.
Section 15 of the Charter
The applicant argued that section 31 of the Act
discriminates against her in that, solely because of
her age, it subjects her to treatment that is differ
ent and less advantageous than the class of
employees to which she belongs, namely unem
ployed persons under 65 years of age. An examina
tion of the record indicates that the applicant has
successfully discharged the initial burden on her of
showing that section 31 of the Act infringes her
right to equality guaranteed by section 15 of the
Charter, so that it is now the duty of the respon
dents to show justification, in accordance with the
provisions of section 1 of the Charter" and the
criteria laid down by the Supreme Court of
Canada, inter alia, in R. v. Oakes, [ 1986] 1
S.C.R. 103, and R. v. Edwards Books and Art
Ltd., [1986] 2 S.C.R. 713.
It can be seen just from reading section 31 that
it imposes different treatment based solely on the
age of claimants, which is the ground of discrimi
nation listed in section 15 of the Charter. "Not-
" 1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
withstanding section 19", 14 subsection 31(1) of the
Act reads, a benefit period shall not be established
for a claimant 65 years of age. Instead, he will
receive a severance benefit amounting to three
weeks of benefits (subsection 31(2)). A benefit
period which has already been established for a
claimant ceases automatically as soon as he
reaches age 65 (subsection 31(4)).
Section 31 of the Act therefore deprives the
applicant of the ordinary protection against unem
ployment which is made available to other unem
ployment persons. The social and financial security
against the uncertainties of unemployment which
the Act is designed to provide employees has been
taken from her permanently, not only for the
period of unemployment following her discharge
on September 19, 1986.
Before being laid off on that date, the applicant
had accumulated 26 weeks of insurable employ
ment since returning to work on March 24, 1986,
after collecting benefits for 37 weeks. Subsection
22(2) 15 entitled her to a basic minimum of 25
weeks' benefits as long as she remained unem
ployed, quite apart from the additional benefits to
which she might have been entitled under subsec
tion 35(1) 16 of the Act, which are unfortunately
not mentioned in the record for lack of any evi
dence on the regional unemployment rate appli
cable to her. The applicant received only three
weeks' benefits because of section 31. Had it not
14 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.
' 5 22.
(2) The maximum number of weeks for which initial benefit
may be paid in a benefit period is the number of weeks of
insurable employment of the claimant in his qualifying period
or twenty-five, whichever is the lesser.
16 (1) When no further benefits are payable to a claim
ant in a benefit period under sections 22 and 34 and the
regional rate of unemployment that applies to him in the last
week for which benefits were payable under those sections
exceeds four per cent, he may, subject to subsection (2), be paid
extended benefit for each week of unemployment that falls in
the remaining portion of his benefit period.
been for that section, the total unemployment
insurance benefits she could have received would
have been much higher than the lump sum of $540
which she did receive, even taking into account the
pension payable to her under the Quebec Pension
Plan ($187 a month), which since January 1986
must be deducted from unemployment insurance
benefits. The applicant has lost the status of an
insured person for good. Even if she were able to
find new insurable employment and to hold it long
enough to again become eligible for benefits, she
would receive nothing from the unemployment
insurance plan. Further, an employee between 55
and 65 years old can claim full benefits under the
Act more than once and for more than one full
benefit period (for as many as fifty weeks at a
time, if we take into account all the theoretical
qualifying factors: the number of weeks of insur-
able employment, complementary benefits depend
ing on the qualifying period and the regional
unemployment rate applicable to a particular
claimant—sections 34 and 35 of the Act).
Counsel for the respondent and the mis -en-cause
maintained that the applicant is not in the same
position as other unemployed persons, or if she is,
she is not disadvantaged because the lack of earn
ings of which she is deprived by section 31 is
otherwise offset by the fact that at age 65 she is
now entitled to social assistance provisions, such as
the old age pension payable under the Old Age
Security Act (R.S.C. 1970, c. O-6), the pension
payable under either the Quebec Pension Plan or
the Canada Pension Plan, supra, the additional tax
exemption of $2,610 added to the basic individual
exemption for persons 65 years old (Income Tax
Act, S.C. 1970-71-72, c. 63, paragraphs 109(1)(b)
and 117(1)(c)) and the program of free medica
tion made available to persons 65 years old by the
Quebec Health Insurance Act (R.S.Q. 1977, c.
A-29).
The only provision which is relevant to the point
at issue is the pension payable under the federal or
provincial pension plans, as only it is connected
with employment: the others are only connected
with the recipient's age. The additional tax exemp-
tion is available to everyone, working or unem
ployed, rich or poor. The Old Age Security Act is
general in application: it makes payments to all
persons 65 years old and the same amount goes to
a person who is well off as to a welfare recipient,
regardless of whether the recipient has always
worked or has never done so in his life, or has
never paid tax. The only qualifications are age and
the period of residence in Canada: this statute has
nothing to do with employment; it confers benefits
on everyone who is 65 years old and does not
deprive anyone of anything because of having
reached that age, as section 31 of the Act does.
The most harmful and singular aspect of section
31 of the Act is that it permanently deprives the
applicant, and any other person of her age, of the
status of a socially insured person by making her a
pensioner of the state, even if she is still looking for
a new job. Regardless of her personal skills and
situation, she is as it were stigmatized as belonging
to the group of persons who are no longer part of
the active population. Nothwithstanding the social
and legislative changes that have taken place since
1971, section 31 in its present form perpetuates the
same insidious stereotype applied when it was
adopted in the Unemployment Insurance Act,
1971, namely that a person who is 65 years or
older and has been unfortunate enough to lose his
job can no longer be retrained for the labour
market and must at that point become the com
plete responsibility of the special social assistance
programs of the government, instead of allowing
free play to the laws of nature and the ordinary
application of social insurance legislation such as
the Unemployment Insurance Act, 1971. Individu
als like the applicant are irremediably labelled and
catalogued with the image of a group to which
they are supposed to belong: persons 65 years or
over are less able to work, a high proportion are
not interested in doing so, most are retired and no
longer can or want to return to the labour market;
the same must be true of everyone else; what good
is it to continue protecting them against unemploy-
ment?—they are all excluded from the plan
regardless of their personal skills and wishes.
That being so, the respondents accordingly had
a duty to show that the clearly unfavourable dis
tinctions perpetrated by section 31 of the Act in
breach of the principle of equal rights and the
equal protection and benefit of the Act, guaran
teed by section 15 of the Charter, can be
demonstrably justified in a free and democratic
society, in accordance with section 1 of the
Charter.
Criteria of assessment
In adopting the rule of ineligibility on account of
age in the Unemployment Insurance Act, 1971, the
legislator was pursuing an entirely valid objective
and one that is in keeping with the Act itself. At
the time it was adopted especially, when the age
limit was set at 70 and the right to benefits was
also denied to claimants 65 years old who might
come under federal and provincial pension plans,
which necessarily involved withdrawal from the
labour market or at least giving up their regular
jobs, the government was right to want to avoid
double compensation in the event of loss of income
resulting from older persons becoming unem
ployed. The government is therefore to be com
mended for seeing to it that public funds, which
are necessarily limited, were used in the best possi
ble way, whether they come from a pension plan or
the unemployment insurance account. Avoiding
abuses of the system was certainly a sufficiently
important objective to justify prohibiting those
receiving pensions when they ceased work from
receiving the compensation designed to replace
income under the Unemployment Insurance Act,
1971. At that time it was possible to conclude that
the great majority of older persons received unem
ployment insurance benefits only to supplement
their pensions from employment or to take their
place, but without intending to continue participat
ing actively in the labour market.
In 1975, however, it was less clear that the same
imperatives were equally urgent and pressing,
when the age limit was lowered to 65 years and
was used as the only exclusionary factor, since the
other reason, withdrawal from the labour market,
had disappeared as the result of parallel amend
ments to pension plans. At age 65 employees could
receive them without necessarily giving up their
employment. However, the postulate that older
workers had ceased to be active in the labour
market, which was used when section 31 was
initially adopted in 1971, had lost its application in
1975. If a person who is 65 becomes unemployed,
he is more likely and more willing to return to the
labour market than at age 70; if the right to
receive an early pension is no longer tied to the
condition of leaving his employment, he will no
longer be legally unable to return to the labour
market if he becomes unemployed.
In any case, even assuming that in 1975 the
government was still acting in response to urgent
and pressing concerns, it is far from certain that
the means chosen to attain the desired objective
met the standard of proportionality and its essen
tial components laid down in Oakes and restated
in Edwards Books and Art Ltd. In Oakes, Dickson
C.J. wrote, at page 139:
Second, once a sufficiently significant objective is recognized,
then the party invoking s.1 must show that the means chosen
are reasonable and demonstrably justified. This involves "a
form of proportionality test": R. v. Big M Drug Mart Ltd.,
supra, at p. 352. Although the nature of the proportionality test
will vary depending on the circumstances, in each case courts
will be required to balance the interests of society with those of
individuals and groups. There are, in my view, three important
components of a proportionality test. First, the measures adopt
ed must be carefully designed to achieve the objective in
question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally
connected to the objective. Second, the means, even if rational
ly connected to the objective in this first sense, should impair
"as little as possible" the right or freedom in question: R. v. Big
M Drug Mart Ltd., supra, at p. 352. Third, there must be a
proportionality between the effects of the measures which are
responsible for limiting the Charter right or freedom, and the
objective which has been identified as of "sufficient
importance".
Despite the changes made in the Act and the
Unemployment Insurance Regulations, as well as
in the Canada Pension Plan and the Quebec Pen
sion Plan, there was no change in the means
selected and the reasons given by the legislator to
attain the desired objective by the introduction of
the concept of ineligibility for benefits into the
1971 Act and its continuance in legislation since
that date. To avoid overlapping between social
programs for persons 65 years and over and to
check abuses, the legislator introduced and perpe
trated the principle of an absolute, outright denial
of the right to unemployment insurance benefits
for employees 65 years and over, regardless of the
personal situation of such individuals or of this
class of claimants. As the government officials of
the day indicated, of 600,000 persons unemployed
in 1974, 17,500 were 65 years and over; of this
number, 10,500 had withdrawn from the labour
market and 7,000 were actively looking for work.
The 1986 statistics show that 175,000 persons 65
years and over were still active in the labour
market, and that of this number 4,000 were unem
ployed but were still actively looking for work.
Most of the studies made and information col
lected, such as those entered in evidence by the
respondent and the mis -en-cause in support of
their defence of justification under section 1 of the
Charter, are concerned with workers 55 years and
over, whether placed in the class of people 55-60
years old, 60-65 years old or over 65 years old.
These statistics show that the tendency to gradual
ly withdraw from the labour market begins at age
55 and the progression does not accelerate appreci
ably at the 65-year watershed. Thus, a survey
conducted in 1977 showed that less than 5 percent
of unemployed persons between 55 and 64 years
old had looked for work. The evidence indicates
that it is the financial incentives to retirement
which prompt people to retire from the active
population at an increasingly early age, not the
fact of reaching age 60 or 65. The prohibition in
section 31 of the Act applies only to people 65
years and over, but in that case it is total and
absolute. It takes in all persons 65 years old, those
who are unemployed and looking for work because
they must work in order to survive just as much as
employees who retire with a substantial pension
from their employer or from one or other of the
government pension plans. No account is thus
taken of those who have no pensions or a small
pension, and even assuming that it is relevant,
those who have not accumulated a sufficient
number of years of residence in Canada to qualify
under the Old Age Security Act.
Section 31 of the Act is discriminatory as com.
pared with claimants 55 years and over, whose
behaviour in the labour market is the same of
almost the same as unemployed workers 65 years
and over. No evidence was put forward to indicate
that the extension of unemployment insurance
benefits to unemployed persons 65 years and over
would place an additional burden on the unem
ployment insurance fund which neither the fund
nor the public treasury could bear. The Court
must conclude from this absence of evidence that
the additional cost is not a relevant factor in
considering the matter. It also was not demonstrat
ed that it is impossible or more difficult for the
Employment and Immigration Commission tc
identify cases of fraud or abuse among unem
ployed persons 65 years old than it is for claimants
under 65, in particular those between 55 and 65
years old. It will be recalled that the control of
abuses was one of the legislator's major concerns
in adopting and maintaining the rule of ineligibili
ty on grounds of age. It is hard to see this as a
measure that has been carefully designed with the
problem for solution in mind. It applies to all
unemployed persons 65 years old indiscriminately.
It is arbitrary and unfair in more than one respect,
since it takes no account of the personal needs and
particular situation of individuals. It is grounded
on the idea which the historical taboos against
older workers have projected onto a much larger
proportion, the population aged 55 years and over,
than the category actually excluded from unem
ployment insurance benefits by section 31 of the
Act.
Since January 5, 1986 the Unemployment In
surance Regulations have been amended (SOR/
86-58) to make any amount received as a pension
deductible from unemployment insurance benefits.
Subsections 57(1) and (2)(e) [as am. by SOR/84-
32, s. 8] read in part as follows:
57. (1) In this section,
"pension" means any retirement pension
(a) arising out of employment, service in the Canadian
Forces or in any police force,
(b) under the Canada Pension Plan, or
(c) under a provincial pension plan.
(2) Subject to this section, the earnings to be taken into
account for the purpose of determining whether an interruption
of earnings has occurred and the amount to be deducted from
benefits payable under section 26 or subsection 29(4), 30(5) or
32(3) of the Act and for all other purposes related to the
payment of benefit under Part II of the Act are
(e) the moneys paid or payable to a claimant on or after
January 5, 1986, on a periodic basis or in a lump sum on
account of or in lieu of a pension.
Section 57 was further amended as of April 5,
1987 (SOR/87-188, s. 1), by the addition to sub
section 57(3) of paragraph (j):
57....
(3) That portion of the income of a claimant that is derived
from any of the following sources is not earnings for the
purposes mentioned in subsection (2):
(j) the moneys referred to in paragraph (2)(e), if the number
of weeks of insurable employment required by section 17 of
the Act for the establishment of the benefit period of the
claimant were accumulated after the date on which those
moneys became payable and during the period in respect of
which the claimant received those moneys.
This amendment allows persons who have
retired from their regular jobs and are receiving
pensions to actively return to the labour market
and hold another job. If they are able to accumu
late the required number of weeks of insurable
employment in accordance with the usual rules
and re-establish their right to benefits, they may if
they again become unemployed receive the full
amount of such benefits without any deduction
being made for the amount of their pension which
has been payable to them since retirement from
their first employment. A special statute, the
Unemployment Insurance Benefit Entitlement
Adjustments (Pension Payments) Act [S.C. 1987,
c. 17], was adopted on April 5, 1987 retroactive to
January 5, 1986, authorizing the Commission to
reimburse claimants eligible for this rebate since
pension income relating to employment had
become deductible from unemployment insurance
benefits. It can be seen that this amendment to the
regulations was adopted primarily in order to ben
efit persons who had retired early and applies to
older claimants, especially those between 55 and
64 years old.
Accordingly, since January 5, 1986, as a conse
quence of section 57 of the Unemployment Insur-
once Regulations, the legislator has attained ir
respect of claimants under 65 the important objec
tive he is supposed to have had in mind in denying
unemployed persons 65 years and over the right tc
receive benefits under section 31 of the Act: he ha.
checked double payments of unemployment insur
ance benefits to claimants under 65 who are
receiving pensions arising out of employment. The
pension is simply deducted from unemployment
insurance benefits. There was no indication at the
hearing that what the legislator had been able tc
do for claimants under 65 by a simple amendment
to the Regulations could not be done in the same
way for unemployed persons 65 years and over.
There is a clear disproportion between the only
means chosen for attaining the desired objective,
by maintaining section 31 of the Act in effect in its
present form, and the draconian effects it has on
all those to whom it applies indiscriminately. The
complete denial of entitlement to unemployment
insurance benefits to unemployed persons 65 years
old is therefore unreasonable and can no longer be
justified in view of the changes which have been
made to the Act and Regulations since the Act
was introduced in 1971.
Section 25 of the Act provides:
25. A claimant is not entitled to be paid initial benefit for
any working day in a benefit period for which he fails to prove
that he was either
(a) capable of and available for work and unable to obtain
suitable employment on that day, or
(b) incapable of work by reason of prescribed illness, injury
or quarantine on that day, and that he would be other
wise available for work.
Section 31 of the Act denies its ordinary ben
efits to unemployed persons 65 years old, absolute
ly and without qualification depending on the per
sonal situation of the individuals affected. It was
not shown that the legislator could not achieve the
same objectives which are the very basis of the
prohibition in section 31 by simply applying the
other relevant provisions of the Act or the Regula
tions, such as section 25 of the Act and paragraphs
57(2)(e) and 57(3)(j), to such persons. Unem
ployed persons, even those 65 years old, have no
vested right in the payment of unemployment in
surance benefits either under the Unemployment
Insurance Act, 1971 17 or under section 15 of the
Charter. However, this section of the Charter
guarantees them all the same protection and ben
efit of the Act, regardless of any discrimination
based on the claimant's age. Age is the only
criterion in section 31 used to exclude unemployed
persons 65 years old who are still part of the active
population and would like to continue being so. It
is a radical measure, unreasonable and out of
proportion to the objectives sought. It cannot be
reconciled with the principle of equal rights con
tained in section 15 of the Canadian Charter of
Rights and Freedoms. As it is not consistent with
the Constitution of Canada, of which the Charter
is a part, section 31 of the Unemployment Insur
ance Act, 1971 is of no force or effect. Having said
this, it follows that the Board of Referees erred in
giving effect to a provision that is inconsistent with
the Constitution of Canada. As it failed to notice
this, the Court must do so in its place in keeping
with the jurisdiction conferred on it by section 28
of the Federal Court Act.
For these reasons I would allow the application
to review and set aside; I would quash the decision
of the Board of Referees rendered on December
12, 1986 and refer the matter at bar back to a
board of referees to be again decided by it on the
assumption that section 31 of the Unemployment
Insurance Act, 1971 is inconsistent with section 15
of the Canadian Charter of Rights and Freedoms,
and is accordingly of no force or effect under
subsection 52(1) of the Constitution Act, 1982.
HUGESSEN J.: I concur.
* * *
The following is the English version of the
reasons for judgment rendered by
DESJARDINS J. (concurring in the result): I
entirely concur in the reasons stated by my brother
Lacombe J. However, in view of the importance of
the threshold question and the debate occasioned
' 7 Côté v. Canada Employment and Immigration Commis
sion (1986), 69 N.R. 126 (F.C.A.).
by it, both in legal literature 18 and in the courts, 19
I add my own observations on the point.
It matters little whether the Board of Referees
can rule on the constitutional validity of section 31
of the Unemployment Insurance Act, 1971, since
this Court can do so. In a proceeding under sub
section 28 (4) or (1) of the Federal Court Act, this
Court can rule on a constitutional point "arising as
a threshold question in the review of the adminis
trative action in issue" (Northern Telecom
Canada Ltd. v. Communications Workers of
Canada, [1983] 1 S.C.R. 733, at page 744). In a
similar way, on an application to review and set
aside a decision of an administrative agency, this
Court can determine whether the administrative
decision exists in constitutional terms before
reviewing it, although of course the standards ap
plicable in a review are entirely different from
those in an appeal. If it were otherwise, what
would be the point of having judicial review of an
administrative decision which has no basis?
In my opinion this suffices to dispose of the
threshold question. Once again, however, as I have
no difficulty with the reasons stated by my brother
Lacombe J., I will proceed.
Administrative tribunals are far from following
a standard pattern. In 1965 Professor Jean Beetz,
now a judge of the Supreme Court of Canada,
18 To the authors cited by Lacombe J. at note 2 on p. 4 of his
reasons I would add: Graham R. Garton, "Civil Litigation
Under the Charter" in Charter Issues in Civil Cases, ed. Neil
R. Finkelstein and Brian MacLeod Rogers (Toronto: Carswell,
1988) at p. 81; Dale Gibson, The Law of the Charter: General
Principles (Toronto: Carswell, 1986) at pp. 280-281; "Proce-
dures in Charter Cases; Procedures and Remedies—Examina-
tion of Questions Pertaining to: WHICH", Jeffrey Sack, Q.C.,
Toronto, Ontario, at pp. 11 et seq in Charter Cases, Causes
invoquant la Charte, Canadian Bar Association, October
24-25, 1986, Montréal, Québec.
19 To the cases cited by Lacombe J., I would add Ontario
Public Service Employees' Union v. Algonquin College of
Applied Arts and Technology, Divisional Court (not yet report
ed) (Steele, Holland and White JJ. heard: April 7 and 8, 1987,
released April 16, 1987); Moore v. B.C. (Govt.) (1988), 23
B.C.L.R. (2d) 105 (C.A.); Terminaux portuaires du Québec v.
Association des employeurs maritimes (A-1080-87, Pratte,
Marceau and Desjardins JJ., judgment dated 11/8/88 (C.A.),
not yet reported).
wrote both for the Quebec and the federal
administrative agencies:
[TRANSLATION] Whatever point of view we take in trying to
study these administrative agencies, their diversity defies anal
ysis: they are almost unreal in this respect and the reason or
basis for all these differences is rarely apparent, even to the
most determined researcher. (Beetz J, "Uniformité de la procé-
dure administrative", a brief submitted to the legislative over
sight committee created by the Bar, (1965) 25 R. du B. 244, at
page 248.)
The Canada Law Reform Commission was of
the same opinion some years later in discussing the
federal administrative agencies. 20
It is clear that administrative tribunals are not
courts of law (Théberge (J. R.) Ltée v. Syndicat
National des Employés de l'Aluminum d'Arvida
Inc. et al., [1966] S.C.R. 378, at pages 382-83).
The courts have recognized in the following deci
sions that the administrative tribunals in question
were independent in that they were not agents or
extensions of the government. This has been the
case with the Quebec Liquor Commission created
under the Alcoholic Liquor Act, R.S.Q. 1941, c.
255 (Roncarelli v. Duplessis, [1959] S.C.R. 121,
at page 185); the Anti-dumping Tribunal (P.P.G.
Industries Canada Ltd. v. The Attorney General
of Canada, [1976] 2 S.C.R. 739, at page 742); the
C.R.T.C. (Capital Cities Communications Inc. et
al. v. Canadian Radio-Television Commn., [1978]
2 S.C.R. 141, at page 172) and the Ontario
Municipal Board (Innisfil (Corporation of the
Township) v. Corporation of Township of Vespra
et al., [1981] 2 S.C.R. 145, at page 171). In the
last case, Estey J. indicated specifically what was
meant by an independent agency:
If on its face an agency is held out in the constituting legisla
tion as "independent" of the executive, that is with functions
independent of the executive branch, it remains that way for all
purposes until the Legislature exercises its undoubted right to
alter, by providing for policy directions for example, the posi
tion and procedure of the agency. (My emphasis)
My brother Lacombe J. has analysed the com
position and powers of boards of referees. I con
20 Law Reform Commission of Canada, Council on Adminis
tration, Administrative Law Series, Study Paper (Ottawa,
Minister [sic] of Supply and Services Canada, 1980), by Alan
Leadbeater, at p. 1.
dude from this that they are not extensions of the
executive. I further conclude, as he does, that these
agencies are not creations of the Canada Employ
ment and Immigration Commission.
The precedents seem largely silent on whether,
in pre-Charter cases, independent administrative
agencies could declare unconstitutional a provision
of the Act they were called upon to apply. They
might certainly be required to consider constitu
tional concepts in order to determine their jurisdic
tion (Northern Telecom Canada Ltd. v. Com
munications Workers of Canada, [1980] 1 S.C.R.
115). When their powers were challenged, how
ever, parties would rely on prerogative writs or
other similar remedies in the courts of law rather
than proceeding by way of objection or defence
before the said agencies. This may be why there
are no precedents.
It is true that in Séminaire de Chicoutimi v. La
Cité de Chicoutimi, [1973] S.C.R. 681, the
Supreme Court of Canada held that only a court
consisting of judges appointed in accordance with
section 96 of the Constitution Act, 1867 could rule
on whether a municipal by-law was ultra vires
under the said section 96. It further held that a
judge of the Quebec Provincial Court could rule on
his jurisdiction (or lack of it) in the matter, if it
came before him. The Court's reasoning was based
on the fact that the power to quash a municipal
by-law for invalidity in constitutional terms was
not in conformity with the kind of jurisdiction
exercised by the courts of summary jurisdiction in
1867, but conformed rather to the kind of jurisdic
tion exercised by the courts described in section
96. In my view, the reasoning in Séminaire de
Chicoutimi does not automatically apply here
despite its apparent parallelism. This decision
could not be taken as authority for saying that
only a court described in section 96 of the Consti
tution Act, 1867 may invalidate legislation under
the Charter. The Charter adds a new dimension to
the Canadian legal system, in that it confers rights
and freedoms on individuals. The Charter is a new
constitutional document which did not exist in
1867, any more than did the present subsection
52(1) of the Constitution Act, 1982, which
provides:
The Constitution of Canada is the supreme law of Canada,
and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or
effet. (My emphasis)
It should not be a matter for surprise that
individuals claiming to have such rights assert
them before agencies created to provide a speedy
determination of their rights in relation to govern
mental authority. Many writers have noticed the
anomalous position in which agencies find them
selves when, on the one hand, they are responsible
for applying the law, and on the other, are
required to determine whether legislation is of no
force or effect under the Charter. Nonetheless, if
such agencies are responsible for interpreting the
law they must deal with the issue in its entirety,
subject to judicial review.
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