Date: 20021007
Docket: A-137-01
Neutral citation: 2002 FCA 370
CORAM: ROTHSTEIN J.A.
BETWEEN:
JOANNE MILLER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
WOMEN'S LEGAL EDUCATION AND ACTION FUND ("LEAF")
Intervener
and
INCOME SECURITY ADVOCACY CENTRE ("ISAC")
Intervener
and
COUNCIL OF CANADIANS WITH DISABILITIES ("CCD") and
CANADIAN MENTAL HEALTH ASSOCIATION ("CMHA")
Interveners
Heard at Toronto, Ontario, on September 25, 2002.
Judgment delivered at Ottawa, Ontario, on October 7, 2002.
REASONS FOR JUDGMENT BY: THE COURT
Date: 20021007
Docket: A-137-01
Neutral citation: 2002 FCA 370
CORAM: ROTHSTEIN J.A.
BETWEEN:
JOANNE MILLER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
WOMEN'S LEGAL EDUCATION AND ACTION FUND ("LEAF")
Intervener
and
INCOME SECURITY ADVOCACY CENTRE ("ISAC")
Intervener
and
COUNCIL OF CANADIANS WITH DISABILITIES ("CCD") and
CANADIAN MENTAL HEALTH ASSOCIATION ("CMHA")
Interveners
REASONS FOR JUDGMENT
THE COURT:
[1] This is an application for judicial review of a decision of an Umpire under the Unemployment Insurance Act, R.S.C. 1985, c. U-1. The Umpire held that subsection 11(6) of the Unemployment Insurance Act did not violate the applicant's rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[2] In March 1996, the applicant applied for special maternity and parental benefits under the Unemployment Insurance Act. The applicant was entitled to the maximum of fifteen weeks' maternity and ten weeks' parental benefits for a total of twenty-five weeks of special benefits. Subsection 11(3) provides:
| 11(3) Subject to subsection (7), the maximum number of weeks for which benefit may be paid in a benefit period (a) for the reason of pregnancy is fifteen; (b) for the reason of caring for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption is ten; and (c) for the reason of prescribed illness, injury or quarantine is fifteen. |
11(3) Sous réserve du paragraphe (7), le nombre maximal de semaines pendant lesquelles des prestations peuvent être versées au cours d'une période de prestations est : a) dans le cas d'une grossesse, quinze semaines; b) dans le cas de soins à donner à un ou plusieurs nouveau-nés du prestataire ou à un ou plusieurs enfants placés chez le prestataire en vue de leur adoption, dix semaines; c) dans le cas de maladie, blessure ou mise en quarantaine prévue par les règlements, quinze semaines. |
[3] The applicant intended to return to work but, at the end of the twenty-five weeks' special benefit period, she was informed by her employer that her position was no longer available. The applicant then applied for regular unemployment insurance benefits. On the basis of the applicant's previous fifty weeks of insurable employment, she was eligible for forty weeks of regular unemployment insurance benefits. Subsections 11(1) and (2) provide:
| 11(1) Where a benefit period has been established for a claimant, benefit may be paid to the claimant for each week of unemployment that falls in the benefit period, subject to the maximums established by this section. (2) The maximum number of weeks for which benefit may be paid in a benefit period for any reasons other than those referred to in subsection (3) shall be determined in accordance with Table 2 of the schedule by reference to the regional rate of unemployment that applies to the claimant and the number of weeks of insurable employment of the claimant in the claimant's qualifying period. |
11(1) Une fois la période de prestations établie, des prestations peuvent, à concurrence des maximums prévus au présent article, être versées au prestataire pour chaque semaine de chômage comprise dans cette période. (2) Le nombre maximal de semaines pendant lesquelles des prestations peuvent être versées au cours d'une période de prestations - à l'exception de celles qui peuvent être versées pour l'une des raisons prévues au paragraphe (3) -est déterminé selon le tableau 2 de l'annexe en fonction du taux régional de chômage applicable au prestataire et du nombre de semaines pendant lesquelles il a occupé un emploi assurable au cours de sa période de référence. |
[4] However, since she had already received twenty-five weeks of special benefits, she was only granted an additional fifteen weeks of regular benefits. This is because paragraph 11(6)(a) provides that the total number of weeks of benefits to which a claimant is entitled for regular and special benefits shall not exceed a claimant's entitlement to regular benefits, which, in this case, was forty weeks. Paragraph 11(6)(a) provides:
| (6) In a claimant's benefit period, the claimant may combine weeks of benefit to which the claimant is entitled for any of the reasons referred to in subsections (2) and (3), but if the |
(6) Des prestations peuvent être versées à la fois en application du paragraphe (2) et pour une ou plusieurs des raisons prévues au paragraphe (3); le cas échéant, les |
| claimant is entitled under subsection (2) (a) to more than thirty weeks of benefit, the total number of weeks of benefit payable for the reasons referred to in subsections (2) and (3) shall not exceed the claimant's entitlement under subsection (2); and ... |
règles suivantes s'appliquent : a) le prestataire qui a, au titre du paragraphe (2), droit à des prestations pendant plus de trente semaines ne peut en recevoir pendant un nombre total de semaines supérieur à ce nombre quand il a également droit à des prestations en vertu du paragraphe (3); |
[5] The applicant argues that subsection 11(6) violates her Charter rights on the grounds of sex and family status. She says that, as a claimant for special benefits, she has been denied the full amount of regular benefits that are available to those who only claim regular benefits. She argues that she should be compared to persons who only claim regular benefits and she should be entitled to the same number of weeks of regular benefits to which they would be entitled, and that the weeks of special benefits that she received should be ignored. Otherwise, she says, she would be denied an equal opportunity to look for alternative employment while receiving benefits.
[6] This Court rejected a similar subsection 15(1) Charter challenge in Sollbach v. Canada (1999), 252 N.R.137 (F.C.A.). In Sollbach, the Court found that the statutory limitation contained in subsection 11(6) did not violate the claimant's subsection 15(1) Charter rights. In the case before us, the Umpire, applying Sollbach, dismissed the applicant's appeal.
[7] It is agreed that, if Sollbach is followed, the applicant cannot succeed. However, she maintains that Sollbach was wrongly decided and that it should not be followed. In order for the applicant to succeed in this case, she must convince this panel, not only that Sollbach was wrongly decided, but also that it should be overruled.
[8] There is no doubt that this Court may overrule its own decisions. However, the values of certainty and consistency lie close to the heart of the orderly administration of justice in a system of law and government based on the rule of law. Accordingly, one panel of this Court ought not to depart from a decision of another panel merely because it considers that the first case was wrongly decided. The Supreme Court of Canada will normally be the appropriate forum for correcting the errors of intermediate courts of appeal.
[9] The jurisprudence on the overruling of prior decisions was reviewed by Urie J.A. in M.E.I. v. Widmont, [1984] 2 F.C. 274 at 278-282 (C.A.), and his comments have been approved in subsequent cases: see, for example, Eli Lilly and Co. v. Novopharm Ltd. (1996), 197 N.R. 291 at 293 (F.C.A.). To summarize, the jurisprudence cited by Urie J.A. holds that, in the interests of certainty and consistency, sound judicial administration requires that, save in exceptional circumstances, a Court of intermediate appellate jurisdiction should follow its prior decisions. The Court is responsible for the stability, consistency and predictability of the law.
[10] The test used for overruling a decision of another panel of this Court is that the previous decision is manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed: see, for example, Eli Lilly and Co., and Janssen Pharmaceutica Inc. v. Apotex Inc. (1997), 208 N.R. 395 at 396 (F.C.A.). The same test has been applied by provincial Courts of Appeal: see, for example, R. v. White (1996), 29 O.R. (3d) 577 at 604-05 (C.A.); Bell v. Cessna Aircraft Co. (1983), 149 D.L.R. (3d) 509 at 511 (B.C. C.A.); R. v. Grumbo (1988), 159 D.L.R. (4th) 577 at para. 21 (Sask.C.A.); and Lefebvre c. Québec (Commission des Affaires Sociales) (1991), 39 Q.A.C. 206.
[11] It could not be contended that, in Sollbach, the Court failed to take account of relevant jurisprudence on subsection 15(1) of the Charter. The Court framed its analysis in the terms prescribed by the then recently decided Supreme Court of Canada decision of Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. The analytical framework adopted in Law has been consistently followed in the jurisprudence on subsection 15(1).
[12] The analysis involves three principal inquiries: first, whether the impugned law imposes differential treatment between the claimant and other persons; second, if it does, whether the differential treatment is based on an enumerated or analogous ground; and, third, if it is, whether the distinction amounts to discrimination for the purpose of subsection 15(1), in that it perpetuates the view that the claimant is less worthy of recognition or value as a human being, or otherwise reflects or reinforces existing disadvantages, stereotypes and prejudice.
[13] In Law, Iacobucci J. also clarified the approach to identifying the group to which the claimant should be compared in a subsection 15(1) analysis. Thus, he said (at para. 56):
Ultimately, a court must identify differential treatment as compared to one or more other persons or groups. Locating the appropriate comparator is necessary in identifying differential treatment and the grounds of the distinction. Identifying the appropriate comparator will be relevant when considering many of the contextual factors in the discrimination analysis.
...
When identifying the relevant comparator, the natural starting point is to consider the claimant's view. It is the claimant who generally chooses the person, group, or groups with whom he or she wishes to be compared for the purposes of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge. However, the claimants characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups. [Emphasis added]
[14] In subsequent decisions, the Court has found that the comparator group selected by the claimant was not appropriate, and has redefined it: see, for example, Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 at paras. 46-52, and Lovelace v. Ontario, [2000] 1 S.C.R. 950 at paras. 62-64, See also the decision by the Ontario Court of Appeal in Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 59 O.R. (3d) 481 at paras. 78 and 79 (C.A.).
[15] The applicant argues that this Court erred in Sollbach by determining that other recipients of special benefits constituted the proper comparator group for the applicant. In Sollbach, however, this Court had regard to the Law decision when it identified the comparator group which it considered appropriate for the claimant.
[16] The Law decision also emphasised that a finding of discrimination in the third and final inquiry requires a contextual, multi-factor analysis of whether the law in question has the effect of violating the human dignity of the complainant. This stage of the analysis also requires a subjective-objective perspective. Again, in Sollbach, this Court engaged in such a subjective-objective contextual analysis and concluded (at para. 14):
... in context, 'a reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as the claimant' would not conclude that s. 11(6) demeans a claimant's dignity.
[17] It is apparent that, in Sollbach, the Court took Law fully into account. Although it is not apparent from the reasons in Sollbach whether the Court also considered Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 and M. v. H., [1999] 2 S.C.R. 3, two subsection 15(1) Supreme Court decisions issued shortly after Law, in our opinion these decisions add little to the Law analysis that is relevant to the issues in Sollbach. Accordingly, the applicant and interveners have not demonstrated that Sollbach was manifestly wrong for purposes of the test for overruling set out by Urie J.A. in Widmont.
[18] In addition, we invited counsel to address the following considerations for the Supreme Court's overruling one of its decisions set out by Dickson C. J. in a dissenting judgment in R. v. Bernard, [1988] 2 S.C.R. 833 at 849:
1. advent of the Charter;
2. attenuation by subsequent case law; and
3. uncertainty of law.
The principles in Bernard were adopted by the Supreme Court in R. v. Chaulk, [1990] 3 S.C.R. 1303 at 1353, and R. v. B. (K.G.), [1993] 1 S.C.R. 740 at 777-78. The Bernard principles have also been applied by provincial Courts of Appeal: see, for example, Public Service Alliance Canada v. NAV Canada (2002), O.R. (3d) 284 at para. 26 (C.A.); Skidmore v. Blackmore (1995), 122 D.L.R. (4th) 330 at paras. 44-47 (B.C. C.A.); and Thomson v. Nova Scotia (Workers' Compensation Appeals Tribunal) 2002 NSCA 58 at paras. 8-9.
[19] The advent of the Charter may require the reversal of a pre-Charter decision. However, this consideration is not relevant here because Sollbach was decided in 1999, long after subsection 15(1) of the Charter came into force.
[20] The second factor to be considered under Bernard is whether the prior case has been attenuated by subsequent jurisprudence. There has been Supreme Court jurisprudence on subsection 15(1) subsequent to Sollbach, namely Granovsky, Lovelace, and Lavoie v. Canada, [2002] SCC 23. However, we have not been persuaded that these cases changed the law in any way relevant to Sollbach. On the other hand, this Court has considered Sollbach in a number of decisions without criticism, e.g. Nishri v. Canada (2001), 269 N.R. 346 (F.C.A.); Krock v. Canada (2001), 273 N.R. 228 (F.C.A.); and Canada v. Brown (2001), 286 N.R. 395 (F.C.A.).
[21] The third factor to be considered under Bernard is whether the prior decision itself creates uncertainty in the law. It would be inconsistent with the principle of certainty in the law to perpetuate an incorrect decision that itself has created uncertainty. However, Sollbach has not created uncertainty with respect to the interpretation or the application of subsection 11(6). The fact that litigants have attempted to persuade the Court either to overrule or to distinguish Sollbach is not evidence that it has created uncertainty.
[22] Counsel suggested that because Sollbach was a Charter decision, it may more readily be overruled than a non-Charter decision. However, counsel have not demonstrated, to our satisfaction, that there is any special reason for treating Charter decisions differently from others. We do not say that, if intervening Charter decisions attenuated the decision alleged to be incorrect or if, over a period of time or due to an event, Canadian values changed from those prevailing at the time of the original Charter decision, there might not be grounds for overruling that decision. However, those considerations do not apply here.
[23] We conclude that, even if Sollbach was wrongly decided, and we do not say that it was, we have not been persuaded that there are compelling reasons to justify our departing from it.
[24] For these reasons, the application for judicial review will be dismissed.
"Marshall Rothstein"
J.A.
"John M. Evans
J.A.
"B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-137-01
STYLE OF CAUSE: JOANNE MILLER v. ATTORNEY GENERAL OF
CANADA ET AL
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 25, 2002
REASONS FOR JUDGMENT
BY THE COURT: (ROTHSTEIN, EVANS, MALONE JJ.A)
DATED: OCTOBER 7, 2002
APPEARANCES:
Ms. Kimberly Murray FOR THE APPLICANT
Ms. Gail Sinclair FOR THE RESPONDENT
Ms. Merrilee Rasmussen FOR THE INTERVENER,
"LEAF"
Ms. Jacquie Chic FOR THE INTERVENER,
"ISAC"
Ms. Ena Chadha
Mr. William Holder FOR THE INTERVENERS,
"CCD" & "CMHA"
SOLICITORS OF RECORD:
Ms. Kimberly Murray
Aboriginal Legal Services of Toronto
Toronto, Ontario FOR THE APPLICANT
Ms. Gail Sinclair
Department of Justice
Ontario Regional Office FOR THE RESPONDENT
Ms. Sondra O. Gibbons
Director of Litigation
Women's Legal Education and Action Fund
Toronto, Ontario FOR THE INTERVENER,
"LEAF"
Ms. Jacquie Chic
Toronto, Ontario FOR THE INTERVENER,
"ISAC"
Ms. Ena Chadha
Mr. William Holder
ARCH: a Legal Resource Centre
for Persons with Disabilities
Toronto, Ontario FOR THE INTERVENER,
"CCD" & "CMHA"