Commentary on Canada (Attorney General) v. Lesiuk

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Before becoming known by a section 15 Charter case bearing her name, Kelly Lesiuk was a registered nurse, and worked part-time in Brandon, Manitoba. She and her husband had a small child, and she was the primary caregiver. In 1997, her husband obtained employment in Winnipeg. Although they initially decided that Kelly would stay in Brandon with the child and her husband would commute to Winnipeg on a weekly basis, it soon became apparent that financially they could not continue to do so. After her move to Winnipeg in 1998, Kelly became pregnant and her doctor recommended that she not work. She applied for Employment Insurance (“EI”), only to be told that she did not qualify. She had worked 667 hours in her previous 52-week qualifying period. The 1996 changes to the Employment Insurance Act meant that Kelly’s entitlement would be judged by how many hours she had worked in total during her qualifying period, rather than how many weeks she had worked (with a 15-hour per week minimum). The requisite number of hours also varied depending on the unemployment rate in the region from which she was applying. The required number of hours for those applying from Winnipeg was 700. In other words, she missed qualifying by 33 hours. Had the family stayed in Brandon, she would have qualified.

The impact of this decision on the Lesiuk family was substantial. In Kelly’s own words:

“At a time when we needed the system most, we were left out in the cold. To make it through, we’ve had to deplete our savings, RRSP’s, max out our credit cards and borrow money. I had to return to work just six weeks after having my baby boy born by caesarian section…We made a costly assumption, that our government would be there when we needed them. We were terribly wrong.”(1)

Kelly was not alone. The numbers of unemployed women receiving EI benefits plummeted as a result of the 1996 changes, much more steeply than the fall in the number of unemployed men receiving benefits. This ratio of “beneficiaries to unemployed” (the “B/U ratio”), was utilized by the government to measure the effectiveness of the (un)employment insurance system. Using this measure, it was clear that the EI system was failing women:

“From 1989 to 1998, the B/U ratio for unemployed men and women who received benefits declined from 83% to 42%. A significant portion of the decline occurred after the implementation of the impugned provisions, with women being affected more than men. Between 1996 and 1998 the B/U for women changed from 46.06% to 37.93% (an 8.1% decline) compared to 49.77 to 45.96% for men (a 3.8% decline).”(2)

In 1999, the government changed the manner in which B/U ratio was calculated. Even so, the numbers still showed that there was a 15% gap between the number of unemployed women who were eligible for benefits and the number of unemployed men.

Kelly appealed the decision to deny her benefits to the Board of Referees, and ultimately to an Umpire. Her argument was that the eligibility requirements discriminated against her based on a combination gender and her status as a parent. The Umpire agreed, stating:

“In my view, the eligibility requirements demean the essential human dignity of women who predominate in the part-time labour force because they must work for longer periods than full-time workers in order to demonstrate their workforce attachment…. Since women continue to spend approximately twice as much time doing unpaid work than men, women are predominantly affected. Thus, the underlying message is that, to enjoy equal benefit of the law, women must become more like men by increasing their hours of paid work, notwithstanding their unpaid responsibilities.” (In the Matter of a Claim by Kelly Lesiuk (November, 1998) CUB 51142, at paragraph 64)

The Umpire’s decision was appealed to the Federal Court of Appeal where LEAF was granted intervener status. LEAF advocated a highly contextualized analysis to determine whether the legislation discriminated against women. LEAF situated the case within a historical context of (un)employment insurance, which traditionally regarded women’s claims with suspicion and deflected their claims based on fears of “misuse” of the system. LEAF also situated the case within a context of women’s poverty, and the vulnerability to poverty and unemployment experienced by female lone parents, and women who are Aboriginal, members of a visible minority, or recent immigrants.

Following Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252 (“Janzen”), and Brooks v. Canada Safeway, [1989] 1 S.C.R. 1219 (“Brooks”), LEAF explained that, in determining whether a legislative provision discriminates, it matters not whether all members of an affected group are women, nor whether all women are in the group of those adversely affected. Rather, it is important to consider both the quantitative impact of the legislation upon women (whether statistics show more women than men are affected), and the qualitative impact (whether the impact of the legislation is felt by women in a uniquely negative manner for reasons related to gender).

LEAF argued that, not only was the quantitative disproportional impact on women of the 1996 changes manifest, but the reasons for this disproportional impact were intimately linked to gender. More women than men make up the part-time workforce (70% of part-time workers are women). This is explained in part by the fact that a vast majority of those primarily responsible for care giving responsibilities in Canadian households are women, reducing the amount of time they have available for paid employment. Women also comprise the vast majority of “involuntary” part-time workers (70%).(3) When women become unemployed, their bouts of unemployment are longer than men’s. This constellation of gender-related factors means that women are not able to accumulate as many hours of paid employment per year as men and are not able to work as intensively as men. Ironically, the 1996 changes made it easier to qualify for those with intensive seasonal work who previously could not meet the weeks-based requirement, primarily men.

LEAF argued that the eligibility criteria’s exclusive reliance upon hours as a measure of workforce attachment is based upon and valorizes male patterns of work. The eligibility criteria do not recognize that women might be just as attached to the workforce as men even though they do not have as many hours of employment.

However, the Federal Court of Appeal found no discrimination against women.[omit](4) The Court considered the issue only from the perspective of “women in a parental status,” and not women as a whole. This meant that the Court did not have to fully consider the statistical information that compared women as a whole with men. Nevertheless, the Court found that Kelly individually, as a woman with parental responsibilities, and others like her, did suffer differential treatment. However, the Court found that the legislation did not demean her human dignity because the eligibility criteria were not “rooted in stereotype and prejudice” and would not make a woman feel less valued as a worker: “[r]ather, I would imagine that a reasonable person would simply feel that they had narrowly missed qualifying because of an unfortunate confluence of events” (at paragraph 45). Further, the Court stated that the criteria responded to the actual needs of women because they permitted greater flexibility in recognizing work arrangements. This was presumably a reference to the fact that the 1996 changes resulted in all hours of employment counting towards eligibility-likely to benefit women who hold multiple jobs (who, as a practical matter, must lose all jobs simultaneously in order to receive benefits anyway). The Court also referred to the lack of “severe and localized effect” because the differential treatment was really between those who qualified and those who did not, and was “not localized on women and/or women in parental status in any statistically significant manner” (at paragraph 50).

The implications of Lesiuk, unfortunately, represent a retreat from the analysis of adverse-effects discrimination found in such cases as Brooks, Janzen and British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3. Arguably, the historical analysis presented in Lesiuk demonstrates how the eligibility criteria operated on the basis of the system’s historic stereotype of women as “secondary earners.” Although the Court did not agree, it was erroneous for the Court to place undue emphasis on whether the legislation functioned on the basis of “stereotype or prejudice” in a case of adverse-effects discrimination. This borders perilously close to requiring that Parliament intended the adverse-effects against a particular group in order for discrimination to be made out.

As a second example of this retreat, the Court relied almost exclusively upon the “objective” aspect of the subjective-objective test for demonstrating the infringement of human dignity. Consequently, Kelly probably would not have been able to succeed unless she could have shown that the eligibility criteria were unreasonable or unfair, a requirement that was rejected early in s.15 Charter jurisprudence. This would have been difficult, considering the Court’s conclusion, peppered throughout its decision on section 15, that this was an “administratively necessary tool tailored to correspond to the requirements of a viable contributory insurance scheme.”(5) This echoes Safeway’s arguments in Brooks that it made an administrative decision to compensate some health-related risks and not others (i.e. pregnancy) in the course of providing a viable disability insurance scheme.

As a whole, the Federal Court of Appeal’s discrimination analysis is very formalistic, with the Court commenting that most women who applied qualified for benefits, that some women benefited from the change, that the group affected did not appear to have unifying characteristics and were not “uniformly disadvantaged.” As noted above, none of these factors exclude a finding of discrimination, and to suggest otherwise is contrary to previous jurisprudence. Comparing those who were denied benefits to those who received benefits rarely sheds light on whether there is substantively differential treatment, as the Ontario Court of Appeal recently recognized in Falkiner v. Ontario (2002), 59 O.R. (3d) 481.

It is likely no coincidence that Lesiuk dealt with EI benefits. The Federal Court of Appeal has interpreted s.15 in other cases concerning EI benefits in the same formalistic manner, and on some occasions with tacit approval by the Supreme Court of Canada (by refusing leave to appeal, as was the case in Lesiuk). On three different occasions, the Federal Court of Appeal ruled that the statutory cap on the weeks of regular benefits received by a woman who has previously received maternity benefits did not violate women’s s.15 Charter rights.(6) In Solbach, the Court found no discrimination because the statutory cap also applied to men on parental leave and to those with a disability who received sickness benefits, and because the distinction was based not on sex, but entitlement to regular benefits. Similar reasons were employed to reject women’s claims that other sections of the Employment Insurance Act discriminated against them. (7)

While space does not allow an analysis of the cases here, it should be noted that the Supreme Court of Canada, in addition to giving its tacit approval of the Federal Court of Appeal’s reasoning in the EI cases, has itself recently rejected s.15 challenges to the provision of welfare benefits in Gosselin v. Quebec (Attorney General), [2002] S.C.J. No. 85 (discussed in a previous issue of Jurisfemme, volume 22, no. 1, Fall 2002) and Canada Pension Plan (“CPP”) disability benefits in Granovsky v. Canada, [2000] 1 S.C.R. 703. Significantly, Law v. Canada, [1999] 1 S.C.R. 497, which introduced the requirement to show an infringement of a claimant’s “human dignity” in the section 15 analysis, rejected a claim that CPP discriminated on the basis of age with respect to the entitlement to survivor’s benefits.

Even if this trend cannot be reversed, I share the opinion of other academic commentators that it is important for equality-seeking groups to continue to insist that courts bring the proper principles to bear in determining s.15 claims of discrimination in the provision of government benefits. If nothing else, it brings such issues into the public consciousness so that political remedies may be pursued where legal remedies fail.

References

1. Personal Statement by Kelly Lesiuk, filed in the judicial review before the Federal Court of Appeal as part of the Applicant’s Record, Volume 1, Tab 2 at p. 62.

2. Women’s Legal Education and Action Fund’s (LEAF) Memorandum of Fact and Law filed in the Federal Court of Appeal, at paragraph 17, based on the evidence of Dr. Paul Phillips in the case before the Umpire.

3. LEAF’s Memorandum of Fact and Law, at paragraphs 12-13 and 16, derived from the evidence of Dr. Paul Phillips in the case before the Umpire and figures compiled by Statistics Canada.

4. See Canada (Attorney General) v. Lesiuk (2003), 299 N.R. 307.

5. At paragraphs 16 and 51.

6. See Solbach v. Canada (Attorney General) (1999), 252 N. R. 137 [hereinafter “Solbach”]; Canada (Attorney General) v. Brown (2001), 286 N.R. 395, and Miller v. Canada (Attorney General) (2002), 220 D.L.R. (4th) 149.

7. See Krock v. Canada (Attorney General) (2001), 273 N.R. 228, leave to appeal to the Supreme Court of Canada denied, (2001), 289 N.R. 387, and Périgny v. Canada (Attorney General), [2003] F.C.J. No. 295.

Kerri A. Froc is a lawyer from Regina, Saskatchewan, and acted as counsel for LEAF in Lesiuk. However, the opinions she expresses in this article are purely her own.