Date: 20010604
Docket: A-284-99
CORAM: DÉCARY, J.A.
IN THE MATTER OF the Unemployment Insurance Act
AND IN THE MATTER OF Section 15 of the
Canadian Charter of Rights and Freedoms
BETWEEN:
SUSAN KROCK
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Calgary, Alberta on Monday, June 4, 2001.
Judgment delivered at Calgary, Alberta, on June 4, 2001.
REASONS FOR JUDGMENT BY: EVANS, J.A.
Date: 20010604
Docket: A-284-99
Neutral Citation: 2001 FCA 188
CORAM: DÉCARY, J.A.
EVANS, J.A.
SHARLOW, J.A.
IN THE MATTER OF the Unemployment Insurance Act
AND IN THE MATTER OF Section 15 of the
Canadian Charter of Rights and Freedoms
BETWEEN:
SUSAN KROCK
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Calgary, Alberta
on Monday, June 4, 2001)
EVANS, J.A.
Susan Krock's employment was terminated on December 13, 1994, when her employer abolished the position in which she had been employed. Her last pay period ended on January 15, 1994. In lieu of notice, she was paid a lump sum equal to approximately a year's salary. Soon after, she applied to Canada Employment and Immigration Commission ("Commission") for pregnancy benefits, but her application was refused on the ground that she was ineligible.
Her appeal to the Board of Referees was successful, but, in a decision dated March 22, 1999 (CUB 33322B), an Umpire allowed an appeal by the Commission from this decision. He held that Ms. Krock was not eligible to receive pregnancy benefits during the weeks to which the Commission had allocated her severance pay in accordance with subsection 58(9) of the Unemployment Insurance Regulations, C.RC. 1978, c. 1576 ("Regulations").
Ms. Krock has made an application for judicial review of the Umpire's decision, which she requests the Court to set aside for error of law. She makes two submissions. First, she says that the statutory provisions rendering her ineligible for the weeks to which her severance pay was allocated discriminated her on the ground of sex and are invalid under section 15 of the Canadian Charter of Rights and Freedoms.
Second, the Umpire misinterpreted subsection 58(9) of the Regulations by interpreting "each consecutive week" to mean one week after another without an intervening interval, even when a claimant is unable to look for employment because of her pregnancy and confinement.
Subsection 58(9) defines as follows the weeks to which severance pay must be allocated:
58. (9) Subject to subsections (1.1) and (10), all earnings paid or payable to a claimant by reason of a lay-off or separation from an employment shall, regardless of the nature of the earnings or the period in respect of which the earnings are purported to be paid or payable, be allocated to a number of weeks that begins with the week of the lay-off or separation from employment in such a manner that the total earnings of the claimant from that employment are, in each consecutive week except the last, equal to the claimant's normal weekly earnings from that employment.
58 (9) Sous réserve des paragraphes (9.1) et (10), toute rémunération payée ou payable à un prestataire en raison de son licenciement ou de la cessation de son emploi est, abstraction faite de la nature de la rémunération et de la période pour laquelle elle est censée être payée ou payable, répartie sur un nombre de semaines qui commence par la semaine du licenciement ou de la cessation d'emploi, de sorte que le total de la rémunération de cet emploi pour chaque semaine consécutive, sauf la dernière, soit égal à la rémunération hebdomadaire normale que le prestataire tirait de l'emploi.
The principal submission of counsel for Ms. Krock is that by denying a woman pregnancy benefit during the time that she is in receipt of severance pay the statutory scheme has a differential adverse impact on women.
The argument is that the purpose of severance pay in lieu of notice is to enable the person concerned to look for alternative employment. Since women are generally unable to do this immediately before and after giving birth to a child, they are in effect forced by the unemployment insurance scheme to use their severance pay to support themselves during this period. Further, since only women can become pregnant, to deny a person pregnancy benefits while in receipt of severance pay is discrimination on the ground of sex contrary to section 15 of the Charter. That pregnancy benefits are available to women not in receipt of severance pay is beside the point; a statutory provision may be discriminatory on the ground of sex, even though its differential adverse impact is not felt by all women.
Despite the able submissions of counsel, we are all of the view that this argument cannot succeed. The reason that Ms. Krock's claim for pregnancy benefits was refused was that, at the relevant time, she was in receipt of a payment made to her as compensation for the salary that she would have earned if she had been given adequate notice and had elected to work out her notice.
Since the receipt of wages operates as a general bar to, or reduction of, all unemployment insurance benefits, it cannot be said that the provisions rendering her ineligible are discriminatory on the ground of sex. A male claimant in receipt of severance pay during weeks when he was not available for work by reason of illness or injury would be equally ineligible for unemployment insurance benefits. Nor could it be argued that, if his illness was one to which only males are prone, the refusal of benefits would be discriminatory.
Similarly, in Sollbach v. Canada (Attorney General) (1999), 252 N.R. 137 (F.C.A.), this Court upheld a statutory limit of general application on the number of weeks of benefits for which a person was eligible. The Court held that this limit applied to the number of weeks of pregnancy benefit and parental leave to which a claimant was entitled who had already received regular unemployment insurance benefits, even though only women could claim pregnancy benefits. See also Nishri v. Canada (Attorney General) 2001 F.C.A. 115.
When presented with an argument that a complex statutory benefits scheme, such as unemployment insurance, has a differential adverse effect on some claimants contrary to section 15, the Court is not concerned with the desirability of extending the benefits in the manner sought. In the design of social benefit programs, priorities must be set, a task for which Parliament is better suited than the courts, and the Constitution should not be regarded as requiring judicial fine-tuning of the legislative scheme.
As we have concluded that the applicant has not established a breach of section 15, we need not address the argument that subsection 58(9) of the Regulations must be read in the way that counsel proposed in order to avoid its invalidity.
For these reasons, the application will be dismissed.
"John M. Evans"
J.A.
Calgary, Alberta
June 4, 2001
FEDERAL COURT OF APPEAL
Date: 20010604
Docket: A-284-99
IN THE MATTER OF the Unemployment Insurance
Act
AND IN THE MATTER OF Section 15 of the
Canadian Charter of Rights and Freedoms
BETWEEN:
SUSAN KROCK
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-284-99
STYLE OF CAUSE: Susan Krock v. The Attorney General
of Canada
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: June 4, 2001
REASONS FOR ORDER BY: EVANS, J.A.
DATED: June 4, 2001
APPEARANCES:
Mr. Brent Gawne FOR THE APPLICANT
Ms. Terry Beaudoin FOR THE RESPONDENT
SOLICITORS OF RECORD:
G. Brent Gawne & Associates
EDMONTON, Alberta FOR THE APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT