Tomasson v. Canada (Attorney General)

Tomasson v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2007-08-09
Neutral citation
2007 FCA 265
File numbers
A-346-05
Notes
Reported Decision
Decision Content
Date: 20070809
Docket: A-346-05
Citation: 2007 FCA 265
CORAM: NADON J.A.
SHARLOW J.A.
PELLETIER J.A.
BETWEEN:
PATTI TOMASSON
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia, on March 27, 2007.
Judgment delivered at Ottawa, Ontario, on August 9, 2007.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: SHARLOW J.A.
PELLETIER J.A.
Date: 20070809
Docket: A-346-05
Citation: 2007 FCA 265
CORAM: NADON J.A.
SHARLOW J.A.
PELLETIER J.A.
BETWEEN:
PATTI TOMASSON
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] This is an application for judicial review of the decision of an Umpire, Krindle J., dated June 9, 2005, which dismissed the applicant’s appeal from a decision of the Board of Referees (the “Board”). More particularly, the Umpire concluded that the Board had made no error in dismissing the applicant’s claim for maternity benefits pursuant to the Employment Insurance Act, S.C. 1996, c. 23 (the “Act”). In so concluding, the Umpire dismissed the applicant’s constitutional challenge that the maternity provisions of the Act contravened section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”).
[2] The main issue in this application is whether those provisions of the Act which grant maternity benefits only to biological mothers (“biological mothers or birth mothers”) discriminate against adoptive mothers and hence violate their rights under subsection 15(1) of the Charter.
[3] For the reasons that follow, I conclude that the provisions at issue do not infringe subsection 15(1) of the Charter. In my view, in granting maternity benefits to birth mothers, Parliament rightly recognized that pregnancy and childbirth justified the granting of particular benefits by reason of the physical and psychological consequences of pregnancy.
THE FACTS
[4] The applicant and her husband adopted two children, namely, Sara, born on March 12, 1999 and Hannah, born on November 8, 2003. Both children were placed with the applicant shortly after their births.
[5] With respect to each child, the applicant applied to the Employment Insurance Commission (the “Commission”) for maternity and parental benefits and on both occasions, she was granted parental benefits but was denied maternity benefits. By the time of Hannah’s birth, the number of weeks in respect of which parental benefits could be paid for the care of a newborn or adopted child was 35 weeks, up from the 10 weeks which had previously been available. In all other respects, the requirements to obtain parental benefits as well as maternity benefits remained unchanged. Consequently, a biological mother can now combine 15 weeks of maternity benefits with 35 weeks of parental benefits, allowing her to spend a total 50 weeks with her newborn child while adoptive parents, including the applicant, are limited to 35 weeks of parental benefits.
[6] At the end of each of her parental leave periods, the applicant decided to take additional unpaid time off from work, which she claims was influenced by the maternity benefits period, so as to continue the bonding process with her children.
[7] The applicant appealed the Commission’s decisions denying her maternity benefits to the Board which upheld the Commission’s decisions that she was not entitled to those benefits because she was not the biological mother of the children in respect of whom she claimed benefits.
[8] In the case of her first child, the applicant appealed the Board’s decision to the Umpire, challenging the constitutionality of the Act on the ground that it was discriminatory against adoptive mothers. Rouleau J., the Chief Umpire designate, refused to address the Charter challenge because, in his view, the issue had already been decided by the Ontario Court of Appeal in Schafer v. Canada (Attorney General) (1997), 149 DLR (4th) 705, (leave to appeal to the Supreme Court of Canada denied on January 29, 1998). Accordingly, the applicant was granted a hearing before Umpire W.J. Haddad, Q.C., but was not allowed by him to put forward her constitutionality argument.
[9] As a result, the applicant commenced a judicial review application of Rouleau J.’s decision before this Court. On June 27, 2002, her application was allowed, the decision of Rouleau J. was set aside and the matter was remitted back to the Chief Umpire designate for him to designate an Umpire, other than himself and Umpire Haddad, to rehear the applicant’s appeal, including the constitutionality issue.
[10] With respect to her second child, the applicant also appealed the Commission’s decision to the Board which, once again, dismissed her appeal. The applicant appealed the Board’s decision and both of her appeals were heard by Krindle J., whose decision of June 9, 2005 disposed of the two appeals.
THE ISSUE
[11] The issue in this application is whether the Umpire committed a reviewable error in dismissing the applicant’s challenge under section 15 of the Charter.
THE RELEVANT LEGISLATION
[12] I reproduce the relevant parts of the impugned provisions of the Act.
12. (1) If a benefit period has been established for a claimant, benefits 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 benefits may be paid in a benefit period because of a reason other than those mentioned in subsection (3) shall be determined in accordance with the table in Schedule I by reference to the regional rate of unemployment that applies to the claimant and the number of hours of insurable employment of the claimant in their qualifying period.
(3) The maximum number of weeks for which benefits may be paid in a benefit period
(a) because of pregnancy is 15;
(b) because the claimant is 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 35;
(c) because of a prescribed illness, injury or quarantine is 15; and
(d) because the claimant is providing care or support to one or more family members described in subsection 23.1(2), is six.
(4) The maximum number of weeks for which benefits may be paid
(a) for a single pregnancy is 15; and
(b) for the care of one or more new-born or adopted children as a result of a single pregnancy or placement is 35.
[…]
22. (1) Notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant who proves her pregnancy
(2) Subject to section 12, benefits are payable to a major attachment claimant under this section for each week of unemployment in the period.
(a) that begins the earlier of
(i) eight weeks before the week in which her confinement is expected, and
(ii) the week in which her confinement occurs; and
(b) that ends 17 weeks after the later of
(i) the week in which her confinement is expected, and
(ii) the week in which her confinement occurs
[…]
(6) If a child who is born of the claimant's pregnancy is hospitalized, the period during which benefits are payable under subsection (2) shall be extended by the number of weeks during which the child is hospitalized.
23. (1) Notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant to care for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption under the laws governing adoption in the province in which the claimant resides.
[Emphasis added]
12. (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 de l’annexe I en fonction du taux régional de chômage applicable au prestataire et du nombre d’heures pendant lesquelles il a occupé un emploi assurable au cours de sa période de référence.
Maximum : prestations spéciales
(3) 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, 35 semaines;
c) dans le cas d’une maladie, d’une blessure ou d’une mise en quarantaine prévue par règlement, quinze semaines;
d) dans le cas de soins ou de soutien à donner à un ou plusieurs membres de la famille visés au paragraphe 23.1(2), six semaines.
(4) Les prestations ne peuvent être versées pendant plus de 15 semaines, dans le cas d’une seule et même grossesse, ou plus de 35, dans le cas de soins à donner à un ou plusieurs nouveau-nés d’une même grossesse ou du placement de un ou plusieurs enfants chez le prestataire en vue de leur adoption.
…
22. (1) Malgré l'article 18 mais sous réserve des autres dispositions du présent article, des prestations sont payables à la prestataire de la première catégorie qui fait la preuve de sa grossesse.
(2) Sous réserve de l'article 12, les prestations prévues au présent article sont payables à une prestataire de la première catégorie pour chaque semaine de chômage comprise dans la période qui :
(a) commence :
(i) soit huit semaines avant la semaine présumée de son accouchement,
(ii) soit, si elle est antérieure, la semaine de son accouchement;
(b) se termine dix-sept semaines après
(i) soit la semaine présumée de son accouchement,
(ii) soit, si elle est postérieure, la semaine de son accouchement
…
(6) La période durant laquelle des prestations sont payables en vertu du paragraphe (2) est prolongée du nombre de semaines d'hospitalisation de l'enfant dont la naissance est à l'origine du versement des prestations.
23. (1) Malgré l'article 18 mais sous réserve des autres dispositions du présent article, des prestations sont payables à un prestataire de la première catégorie qui veut prendre soin de son ou de ses nouveau-nés ou d'un ou plusieurs enfants placés chez lui en vue de leur adoption en conformité avec les lois régissant l'adoption dans la province où il réside.
[Je souligne]
I also reproduce subsection 15(1) of the Charter.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques
[13] By reasons of the impugned provisions of the Act, biological mothers are entitled to a total of 50 weeks of paid leave, i.e. 15 weeks as a result of the pregnancy and 35 weeks for the care of the newborn child. The maternity benefits can be taken by the biological mother, at any time, 8 weeks before the birth of the child and 17 weeks after the birth. With respect to the 35 additional weeks, they can be used either by the biological mother or the biological father. I should point out that the maternity benefits of 15 weeks are available to the biological mother even in those instances where the child is given up for adoption or is stillborn. With respect to adopted children, the adoptive family, either the mother or the father, is entitled to 35 weeks of paid leave.
[14] The applicant challenges, under subsection 15(1) of the Charter, the constitutionality of those provisions on the ground that they treat biological and adoptive mothers differently. She submits that the purpose and effect of the differential treatment is to give biological mothers more time for bonding and childcare than is afforded to adoptive mothers.
THE UMPIRE’S DECISION
[15] Because of her view that she was bound by the decision of the Ontario Court of Appeal in Schafer, supra, which held that the provisions of the Act granting maternity benefits to biological mothers did not discriminate against adoptive mothers, Krindle J. dismissed the applicant’s appeals. However, it can safely be said that had Krindle J. not been of the view that she was bound by Schafer, supra, she likely would have decided the issue in favour of the applicant.
[16] I should point out here that, by consent, the respondent filed, as part of the record before the Umpire, affidavit evidence originally filed in the Schafer case. In particular, the respondent filed the affidavits of Dr. Murray Enkin, sworn July 14, 1994 and May 21, 1995. At that time, Dr. Enkin was professor emeritus with the Department of Obstetrics and Gynecology at the Faculty of Health Sciences, McMaster University, with an associate appointment with the Department of Clinical Epidemiology and Biostatistics.
[17] In addition to the documentary evidence adduced by the parties, the Umpire heard, inter alia, the oral evidence of the applicant and of Dr. Lucy Jane LeMare, a developmental psychologist.
THE APPLICANT’S SUBMISSIONS
[18] The applicant makes a number of submissions as to why this Court ought to overturn the Umpire’s decision.
[19] First, the applicant submits that as the Umpire was not bound by Schafer, supra, she ought to have decided the case before her on the basis of the section 15 test enunciated by the Supreme Court in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. As a corollary to that submission, the applicant says that, in any event, Schafer, supra, was wrongly decided and that it contains numerous errors.
[20] To begin with, the applicant submits that in concluding that the sole purpose of the maternity benefits was to allow women to recover from pregnancy, the Ontario Court of Appeal ignored subsection 22(6) of the Act, which allows a biological mother to extend the period of maternity benefits by the length of time her child is hospitalized. Hence, according to the applicant, subsection 22(6) is inconsistent with the point of view adopted by the Ontario Court of Appeal in Schafer, supra, that there is a sole purpose to the maternity provisions.
[21] In that light, the applicant says, relying on the Supreme Court’s decision in Reference Re. Unemployment Insurance Act (Canada), ss. 22 and 23), [2005] 2 S.C.R. 669, and on subsection 22(6) of the Act, that it is clear that the maternity provisions have a dual purpose, namely, recovery and bonding/attachment, which purposes Umpire Krindle was prepared to find had she had not been of the view that she was bound by Schafer, supra. Specifically, the applicant refers to paragraphs 67 and 68 of the Umpire’s decision, where she says:
[67] Recovering from the effects and stresses of pregnancy and giving birth does not require the physical presence of the child with the mother. The mother's recovery from the effects of pregnancy and giving birth will continue whether or not the child is hospitalized. In all probability a mother's physical recovery would be faster if she had only her own needs to consider. What is fostered by the forgoing subsection is the ability of the mother and child to be together, the ability of the mother to be with the child and the child to be with the mother. What is fostered by the forgoing subsection is the crucial process of bonding/attaching.
[67] [sic] Subsection 22(6) has always been part of the maternity/pregnancy benefit provisions of the Act. It was part of the benefits provisions at the time of the decision in Schafer and cannot constitute new law enacted after Schafer.
[68] I would find, if the decision were mine to make, that the pregnancy/
maternity provisions have a two-fold purpose:
(a) to permit a birth mother to heal from a pregnancy; and
(b) where there is a birth mother and baby, to permit the birth-mother and baby to spend time together following the birth of the baby.
[22] As a second error in Schafer, supra, the applicant submits that the Ontario Court of Appeal failed to consider the effect of the maternity provisions and whether that effect was discriminatory on adoptive mothers and their children.
[23] As a third error, the applicant says that, contrary to the Supreme Court’s decision in Law, supra, the Ontario Court of Appeal failed to consider the needs of adoptive mothers in interpreting the maternity provisions.
[24] The applicant then submits that on the basis of the test enunciated by the Supreme Court in Law, supra, the inevitable conclusion is that the provisions at issue discriminate against adoptive mothers and that such discrimination is not justified under section 1 of the Charter.
[25] More particularly, the applicant makes the following submissions based on the test set out in Law, supra:
The proper comparator group to adoptive mothers and their children is that of biological mothers and their children. The legislation at issue imposes differential treatment between adoptive mothers and biological mothers in that the latter receive an additional benefit of 15 weeks of maternity leave in the first year of their child’s life, but adoptive mothers do not. Adoptive mothers are subject to differential treatment based on an analogous ground. The applicant, as an adoptive mother, has faced pre-existing disadvantage. In support of this proposition, the applicant relies on the judgment of this Court in Canada (Attorney General) v. McKenna, [1999] 1 F.C.R. 402. The maternity benefits provisions have a purpose or effect that is discriminatory within the meaning of the Charter. At paragraph 81 of her Memorandum of Fact and Law, the applicant makes the point in the following terms:
81. However, having set out to provide for both birth mothers and their children, and adoptive mothers and their children, the Act does so in a manner that is discriminatory because:
(a) The bonding and attachment process is critical to the longterm development of an infant.
(b) The most important time for the bonding and attachment process is in the first 12 months of life.
(c) Infants are attaching with their mothers and mothers are bonding with their infants during the maternity benefit provision and they are doing so regardless of whether the mother is healing from pregnancy.
(d) Adopted infants and birth infants require the same amount of time for attachment forming.
(e) but, “the legislated denial of maternity benefits to adoptive mothers in a significant percentage of cases lessens the time available in the first critical year of a child’s life for an infant to attach to his or her adoptive mother and lessens the time available to an adoptive mother to bond with her adopted child” [Reasons of the Umpire, para. 39]
The discrimination which results from the impugned provisions impacts upon her dignity interests as a mother. At paragraph 85 of her Memorandum of Fact and Law, she makes that point as follows:
The dignity interest at issue in this proceeding is that of motherhood. It relates to the ability of the Claimant to place herself within that designation with the same force and effect as birth mothers caring for their newborns. It relates to the ability of the Claimant to care for, nurture and bond with her daughters. It is difficult to conceive of a fundamental social institution more important than motherhood. It is equal access to that institution which the Act deprives the Claimant and her children and it cannot be reasonably argued that such a result is not contrary to the dignity interests involved.
The discrimination against adoptive mothers is not saved by section 1 of the Charter.
[26] For her submissions regarding the bonding and attachment process, the applicant relies on the evidence of Dr. LeMare. In particular, the applicant relies on the following passages from Dr. LeMare’s affidavit of July 6, 2004:
7. Bonding refers to the feelings of affection and protectiveness that parents have towards their babies. …
8. Some mothers feel an immediate bond with their children and for others it takes longer. The same is true for adoptive mothers. In some rare instances, which apply to birth mothers and adoptive mothers, a mother never feels a strong bond to her child. Birth mothers often begin preparing to bond before their child is born when they experience fetal movement, see ultrasound images, anticipate the birth, and go through the birthing process. These experiences can engender feelings of “knowing” one’s child and affection for the child. In most instances, adoptive mothers do not have the opportunity to participate in these experiences with their unborn child. The preparation to bond can begin when adoptive parents hear that they will be receiving a child, which is typically very shortly before the child actually comes home. Hence, the start of the bonding process typically occurs closer to the time of actual contact with the infant in adoptive families than in birth families.
9. Bonding is extremely important as the affectional ties a mother feels for her baby prime her to behave in a way that will promote the likelihood of the infant forming a secure attachment. Specifically, when a mother experiences strong feelings of affection and protectiveness towards her infant, she takes pleasure in her baby and is motivated to attend to and become proficient at reading and reacting appropriately to her baby’s signals. These caregiving behaviours support the development of a secure attachment on the part of the infant. In most instances, bonding occurs and intensifies during the early days, weeks and months of the infant’s life during which time mothers and infants are typically in close and continuous proximity to one another. Hence, bonding and recovery from childbirth most often happen contemporaneously.
10. Attachment refers to a very specific kind of relationship that infants form with their caregivers. The attachment process derives from the infant’s inate need for safety and security.
11. An infant’s disposition to form an attachment is based in her biology and is of evolutionary significance because it maximizes the child’s likelihood of survival. All babies are born ready to form attachments.
12. Early attachment behaviours include crying and smiling; both of these are behaviours whose fundamental function is to keep caregivers engaged with and in close proximity to the infant.
…
18. While selective attachment does not occur until an infant is approximately six months of age, all the caregiving that an infant has received in the first six months of life informs the quality of attachment that forms. The early months of the infant’s life are a critical time for caregivers to learn about and become proficient at reading and reacting appropriately to the baby’s signals. Their success at this contributes to the expectations that the infant develops regarding the availability of care and security. …
21. If a child is adopted early in infancy there is no difference in the attachment process between adopted and biological children.
22. A secure attachment is the ideal for all children. That is because a secure attachment helps children navigate through the developmental tasks they will encounter as they age. … In that sense, I am of the opinion that the quality of the attachments adopted children form with their parents as infants can be more important for adopted children as they enter adolescence.
23. Research indicates that 18 months with a particular emphasis on the first 12 months, is the most important time for the formation of the attachment bond. This time frame is not generally different for adopted children if they are adopted early in infancy.
[Emphasis added]
[27] During the course of her oral testimony, Dr. LeMare indicated that there was no difference in the bonding process between father and child and mother and child. At pages 53 and 54 of the transcript of her testimony of March 15, 2005, she gave the following evidence:
Q. … And did I understand you to say that there is a difference between father and child and mother and child?
A. I don’t think I said that. There often is a difference. In our society typically it is mothers who care for infants; and because of that, typically mothers get to know their infants more quickly and possibly better than fathers do.
Q. But theoretically there should be no difference.
A. Theoretically if it was the father who was caring for the infant in the same way that mothers typically care for infants, we may not expect a difference.
Q. Okay, and that can happen?
A. That can happen, yes.
SCHAFER v. CANADA
[28] Although it goes without saying that we are not bound by Schafer, supra, I have concluded, after careful consideration of the reasons given by the Ontario Court of Appeal in that decision, that the conclusion reached by that Court is clearly the right one. Because I agree entirely with the Reasons given in Schafer, supra, I will first carefully review them, as well as those given by the British Columbia Court of Appeal in B.C. Government and Service Employees’ Union v. British Columbia (Public Service Employee Relations Committee) (2002), 216 D.L.R. (4th) 322, which fully endorsed Schafer, supra. Following that review, I will address the applicant’s overall submissions, including her submission that Schafer is not good law by reason of the Supreme Court of Canada’s decisions in Law, supra, and Reference re Insurance Employment Act (Canada),supra.
[29] I should point out that at the time that Schafer, supra, was heard by the Ontario Court of Appeal, the Unemployment Insurance Act, R.S.C. 1985, c. U-1 (the “U.I. Act”), provided for 15 weeks of maternity benefits to biological mothers and 10 weeks of parental benefits to either biological or adoptive parents. In addition, five weeks of benefits were provided if the child suffered from a physical, psychological or emotional condition. The U.I. Act also provided for 15 weeks of sickness benefits.
[30] Commencing December 31, 2000, the parental benefits under the Act (the Act came into force on June 20, 1996) were increased from 10 weeks to 35 weeks. Both parents can share these benefits but are limited to one 35 week period.
[31] In Schafer, supra , the respondents, two adoptive mothers and their adopted sons, challenged, pursuant to section 15 of the Charter, those provisions of the Act which treat biological and adoptive mothers differently, namely: paragraph 11(3)(a) (now 12(3)(a)), which provided maternity benefits to biological mothers for a period of up to 15 weeks; and paragraph 11(3)(b) (now 12(3)(b)), which provided for childcare benefits to all parents, whether biological or adoptive, for a period of up to 10 weeks (now 35 weeks).
[32] The respondents argued that these provisions, by allowing a biological family 25 weeks (15 weeks + 10 weeks) of paid leave and 10 weeks only to an adoptive family, were discriminatory and in violation of section 15 of the Charter.
[33] Cameron J., the Trial Judge, in a decision reported at (1996) 29 O.R. (3d) 496 (Gen. Div.), declared that those parts of the U.I. Act which provided pregnancy and childbirth benefits were discriminatory against adoptive parents and adopted children contrary to subsection 15(1) of the Charter, and that the provisions were not saved by section 1 of the Charter.
[34] The Ontario Court of Appeal began its analysis by a review of the legislative history of the U.I. Act which came into force in 1940, the purpose of which was to provide benefits to an unemployed person, capable of work and in search of work. Hence, the case law established a presumption that because a pregnant woman was not physically capable of working for a period of six weeks prior to the expected birth and for six weeks after the birth, she was not entitled to benefits unless she could rebut the presumption.
[35] In 1971, because of the increasing role of women in the workforce, the U.I. Act was amended to provide maternity benefits of 15 weeks, which had to commence eight weeks prior to the expected birth and which had to end six weeks after the birth.
[36] In 1976, the U.I. Act was again amended to make the 15 weeks of benefits payable at any time during a 26-week period, beginning eight weeks before the expected birth and terminating 17 weeks after birth.
[37] In 1984, a further amendment came into force so as to provide 15 weeks of parental benefits for the use of either adoptive mothers or fathers. By reason of the coming into force of section 15 of the Charter in April 1985, these provisions were successfully challenged in Schachter v. Canada, [1988] 3 F.C. 515. In that case, Mr. Schachter sought a declaration that the parental benefits of 15 weeks were discriminatory in that he, as a biological father, was not entitled to them.
[38] Strayer J. (as he then was) concluded that the legislation discriminated against Mr. Schachter on the basis of his sex. He accordingly “read into” the U.I. Act a provision giving biological parents the same childcare benefits that adoptive parents were entitled to under the legislation. Strayer J.’s decision was appealed to the Supreme Court of Canada but, before the case was heard, the U.I. Act was amended so as to provide for ten weeks (the benefit was reduced by Parliament from 15 weeks to ten weeks) of parental benefits available to either biological or adoptive parents.
[39] After carefully reviewing the reasons given by Cameron J. in concluding that the provisions of the U.I. Act which provided for pregnancy and childbirth benefits discriminated against adoptive parents and adopted children, the Court of Appeal turned to the issues before it.
[40] First, the Court of Appeal enquired into the purpose of the maternity and childcare benefits. It had no difficulty concluding that the purpose of these benefits was to protect women who work from the economic costs of pregnancy and childbirth. In the Court’s opinion, the first judge had erred in concluding that the purpose of the maternity benefits was that of supporting family formation. In the Court’s view, the focus of the U.I. Act was not the formation of families, but the circumstances surrounding employment and unemployment. In that light, Austin J.A., writing for the Court in Schafer, supra, said at para. 37:
37. The original maternity benefit in the 1971 legislation was Parliament’s response to what it was as the special needs of birth mothers, including those who give up their children for adoption. Parliament provided a comprehensive arrangement to protect the income, job security and promotion of women in the workplace who become pregnant. The purpose of the 1984 amendment was to do the same for women who adopt children. The specific purpose of both the 1971 and 1984 legislation was to provide partial replacement of income while out of the workplace, either by reason of pregnancy and childbirth or by reason of child care.
[Emphasis added]
[41] Following this conclusion, the Court of Appeal turned to the second issue before it, namely, whether the existing scheme of maternity benefits and childcare benefits violated subsection 15(1) of the Charter.
[42] The Ontario Court of Appeal proceeded on the basis of the test enunciated by the Supreme Court of Canada in Miron v. Trudel, [1995] 2 S.C.R. 418. That test was summarized by the Court of Appeal at para. 39 of its Reasons as follows:
(a) Does the Act distinguish between the claimant and others so as to deny the claimant one or more of the equality rights protected by s. 15(1)?
(b) Is this denial of equality discriminatory? This requires the court to consider whether the distinction is:
i. based upon an enumerated or analogous ground; and
ii. contrary to the purpose of s. 15(1).
[43] After indicating its agreement with Cameron J. that the discrimination analysis could not be focused on the adoptive family but rather on a comparison between biological and adoptive mothers, the Court then addressed the first leg of the test, i.e. whether a distinction existed between the claimant and others resulting in a denial of equality before or under the law, or equal protection or benefit of the law.
[44] In answer to that question, the Court stated in unequivocal terms that the legislation made a distinction between biological and adoptive mothers and that as a result of that distinction, adoptive mothers were denied the same benefits as those available to biological mothers. Consequently, the claimants had established that they were denied equal benefit of the law.
[45] The Court then turned to the question of whether the distinction was discriminatory. It first asked itself whether the distinction was based upon an enumerated or analogous ground. Although he was not convinced that women who adopted children did so by reason of a personal characteristic that was immutable or changeable only at an unacceptable personal cost, or that adoptive women constituted a minority that was discrete in the sense of separate or discernible, or that adoptive parents had suffered historical and legal disadvantages as a result of their status, Austin J. nonetheless assumed, without deciding the question, that the status of adoptive mothers constituted an analogous ground.
[46] The Court of Appeal then dealt with the question of whether the distinction between biological and adoptive mothers violated subsection 15(1) of the Charter. It began its analysis of that question by quoting with approval that part of Cameron J.’s Reasons, found at page 528, where he stated:
… does the impugned legislative provision violate the purpose of s. (15(1), namely, to prevent the violation of human dignity and freedom through the imposition of limitations, disadvantages or burdens based on the stereotypical application of group characteristics?
[47] The Court noted that Cameron J.’s words correctly reflected what had been said by McIntyre J. at pages 168-169 and 174-175 of his Reasons in Andrews v. Law Society of British Columbia, [1989]1 S.C.R. 143,
It is, of course, obvious that legislatures may – and to govern effectively – must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures. The classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society. As noted above, for the accommodation of differences, which is the essence of true equality, it will frequently be necessary to make distinctions. (pp. 168-169)
…
Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed. (pp. 174-175).
[Emphasis added]
and by McLachlin J. (as she then was) at page 429 of her Reasons in Miron, supra,
… exceptionally it may be concluded that the denial of equality on the enumerated or analogous ground does not violate the purpose of sec. 15(1) – to prevent the violation of human dignity and freedom through the imposition of limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics, rather than on the basis of merit, capacity or circumstances.
[Emphasis added]
[48] As an example of the kind of exceptions envisioned in Miron, supra, the Court of Appeal referred to the Supreme Court’s decisions in R. v. Hess, R. v. Nguyen, [1990] 2 S.C.R. 906, and Weatherall v. Canada (Attorney General of Canada), [1993] 2 S.C.R. 872, where the Supreme Court, notwithstanding a legislative distinction based upon an enumerated ground, held that there was no discrimination contrary to subsection 15(1) of the Charter because the distinction was based on capacity or circumstances rather than upon the stereotypical application of presumed group characteristics.
[49] The Court of Appeal made the point that what these cases showed was that “a biological reality removed the distinction drawn from the ambit of section 15(1)” (para. 59 of the Court of Appeal’s Reasons). The Court then went on to say that a similar analysis applied in the case before it in that pregnancy and childbirth, which only biological mothers experience, constituted an inescapable biological reality. Thus, in the Court’s view, compensating biological mothers for loss of work by reason of their pregnancy and childbirth could not constitute discrimination.
[50] The Court then turned to an argument put forward by the respondents (Mr. and Mrs. Schafer) and the intervener, the Adoption Council for Ontario, that a maternity benefit period of 15 weeks exceeded the physiological needs of most biological mothers and that an average of 4 to 6 weeks was sufficient for biological mothers to cope with the physical consequences of pregnancy and childbirth and that, as a result, paragraph 11(3) [now 12(3)] of the Act went beyond the specific circumstances of biological mothers. Hence, in that light, paragraph 11(3) did not fall within the exceptions alluded to by McLachlin J. in Miron, supra. On the basis of that submission, the respondents and the Adoption Council for Ontario argued that the purpose and/or effect of those weeks which were not required to meet the physical demands of pregnancy and childbirth gave biological mothers additional time to bond with their children, which time was not afforded to adoptive mothers.
[51] The Court of Appeal dealt with these submissions as follows. First, the Court opined that although pregnancy was not an illness, it had many of its physical characteristics, i.e. nausea, fatigue, vomiting, backache, fluid retention, vaginal discharge, varicose veins and nerve entrapment syndromes. It further said that not only was anxiety concerning the forthcoming labour a source of distress for the biological mother, she faced additional problems in the case of either an abnormal or difficult pregnancy, i.e. multiple pregnancy, diabetes, pre-eclampsia and bleeding. The Court also alluded to the fact that approximately one-fifth of deliveries in Canada were carried out by caesarian section which requires anesthesia and major abdominal surgery. It also pointed out that vaginal birth often requires an episiotomy or perineal laceration, the pain and discomfort of which often lasts for weeks and months.
[52] For these findings, it can safely be said that the Court of Appeal relied in great part on the evidence of Dr. Murray Enkin, whose affidavits of July 14, 1994 and May 21, 1995 were before Umpire Krindle. In particular, the following passages from Dr. Enkin’s affidavit of July 14, 1994 appear highly relevant:
LABOUR AND CHILDBIRTH
29. Labour and childbirth exact their toll to a different degree in different women. Some labours are short and relatively easy. Others are prolonged and exhausting. Approximately one fifth of deliveries in Canada today are carried out by Caesarian section, which adds the additional strain of an anaesthetic and a major abdominal surgical operation. Vaginal birth is often accompanied by an episiotomy or perineal laceration, with subsequent pain and discomfort, which persist for weeks or months. Almost 50% of Ontario births involve an episiotomy, with