Digests

Périgny v. Canada (Attorney General)

A-405-01

2003 FCA 94, Décary J.A.

21/2/03

21 pp.

Plaintiff maintained provisions on eligibility for unemployment insurance benefits of "new entrant or a re-entrant to the labour force" within meaning of Unemployment Insurance Act, s. 6(3), (4) (disputed measure) unconstitu-tional as discriminating against women who have left labour market to attend to family obligations--Provisions commonly known as "DEREMPA" rule--Plaintiff asked that disputed measure not be applied to her and benefit period be established for her as if measure did not exist--Plaintiff's argument dismissed by Umpire on ground plaintiff had not discharged burden of proof on party relying on equality right conferred by Charter, in s. 15--Plaintiff objected Umpire erred in law by not adopting approach suggested in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 (Law), erred in law by imposing too heavy burden of proof and erred in fact by drawing conclusions which he could not draw--Law suggests three-stage approach which takes form of three questions Court must answer-- Discrimination within meaning of Charter, s. 15(1) if affirmative answer to each question--First objection to Umpire's decision without basis--Umpire adopted approach taken in Symes v. Canada, [1993] 4 S.C.R. 695 (Symes), since that case also, unlike Law, concerned statute only discriminatory by its effect--Umpire did not go through third stage of analysis suggested by Law, as he came to conclusion, by his own approach based on Symes, that plaintiff had failed at first stage--Objection all the more unwarranted as plaintiff failed to deal with third stage in manner indicated in Law, obliging Court and counsel for defendant to hear completely rehashed and very tedious oral argument--In any event, in Law, Court careful to state that "these guidelines should not be seen as a strict test, but rather should be understood as points of reference for a court" and that "it is inappropriate to attempt to confine analysis under s. 15(1) of the Charter to a fixed and limited formula"--On second objection having to do with burden of proof and findings of fact made by Umpire, in Court's opinion two ways of looking at burden of proof-- Umpire's approach seems doubtful because although aware in principle that applicable rule was that of balance of probabilities, may not have applied it in practice--Here Umpire referred to probable degree of evidence which would be insufficient--Fact parliamentary debate and controversy surrounding adoption and maintenance of DEREMPA rule in connection with Unemployment Insurance Act reflected very widespread belief rule affected women more severely than men--Such belief cannot in itself establish rule discriminatory, but fact so many persons and agencies involved in decision-making thought measure could have this effect should be taken into account by Umpire in overall assessment of evidence--First step dealt with--On second step, plaintiff easily met requirement: differential treatment essentially based on sex, an expressly recognized ground, and analogous ground of parental status--On third stage courts do not readily conclude infringement of Charter, s. 15(1) when differential treatment results from contributory benefit plans such as Canada Pension Plan and employment insurance plan--Impugned measure not infringing essential dignity of women in parental status--Difficult to regard as undignified particular situation in which plaintiff found herself--Plaintiff objected disputed measure not adapted to her personal circumstances, which were out of the ordinary--Parliament cannot foresee all contingences, nor does it seek to provide for all possibilities, in sense it is entitled to target certain persons rather than others--Disputed measure particularly complex, may not be ideal solution or solution that suited plaintiff, but difficult to conclude attempt, perhaps imperfect one, to benefit certain women in general, and women in parental status in particular, infringes essential dignity of certain other women--Eligibility requirement not manifestation of lack of respect or loss of dignity--Administratively necessary tool tailored to correspond to requirements of viable contributory insurance scheme--Application for judicial review dismissed --Unemployment Insurance Act, R.S.C., 1985, c. U-1, s. 6 (as am. by S.C. 1990, c. 40, s. 5)--Canadian Charter of Rights and Freedoms, being Part I of Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15(1).