UNEMPLOYMENT INSURANCE |
Nishri v. Canada
A-302-99
2001 FCA 115, Evans J.A.
12/4/01
20 pp.
Application for judicial review of Umpire's decision dismissing appeal from Board of Referees' decision refusing to grant applicant parental leave benefits--Applicant applying for parental leave benefits provided by amendments to Unemployment Insurance Act--Request refused on ground, under transitional provisions, eligibility for parental leave had to be determined under law before November 18, 1990, which entitled her to maternity leave benefits, but not to parental leave benefits--Amendments to Unemployment Insurance Act, effective November 18, 1990, made important changes to many aspects of statutory scheme--Whether Parliament succeeded in remedying constitutional defect in Act identified by Strayer J. in Schachter v. Canada, [1988] 3 F.C. 515--Under old rules, woman who qualified for benefits under unemployment insurance scheme entitled to 15 weeks of maternity benefits starting no earlier than 8 weeks prior to expected date of delivery, and ending no more than 17 weeks after birth of child--New rules respecting parental leave treated adoptive, biological parents in same manner, allowed mothers, fathers to choose how to divide leave--Case turning on constitutionality of 1990 amendments to Unemployment Insurance Act, s. 56--Applicant's claim to parental leave determined under old rules as could satisfy neither of conditions that triggered application of new rules, that is, applicant established benefit period before November 18, 1990 when claiming maternity benefits and child born before that date--S. 56 containing criteria for determining whether claim to be decided under old rules or new rules--Authoritativeness of Strayer J.'s decision limited by Supreme Court's subsequent elaboration of constitutional concept of equality embodied in Charter, s. 15--Application of old rules to applicant did not discriminate against her on ground of sex in constitutional sense, even though it may have been easier for biological fathers than for birth mothers to qualify for parental leave--Case concerning provisions transitional in nature--Parliament should be given degree of latitude in determining where to draw line between benefit claims falling under old, new rules, exercise almost bound to seem arbitrary to those falling on wrong side of line--Application dismissed--Unemployment Insurance Act, 1971, R.S.C., 1985, c. U-1--An Act to amend the Unemployment Insurance Act and the Employment and Immigration Department and Commission Act, S.C. 1990, c. 40, s. 56--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.