Reference re Employment Insurance Act (Can.), ss. 22 and 23

Reference re Employment Insurance Act (Can.), ss. 22 and 23
Collection
Supreme Court Judgments
Date
2005-10-20
Neutral citation
2005 SCC 56
Report
[2005] 2 SCR 669
Case number
30187
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 30187
Decision Content
SUPREME COURT OF CANADA
Citation: Reference re Employment Insurance Act (Can.), ss. 22 and 23 , [2005] 2 S.C.R. 669, 2005 SCC 56
Date: 20051020
Docket: 30187
Between:
Attorney General of Canada
Appellant
v.
Attorney General of Quebec
Respondent
‑ and ‑
Attorney General of New Brunswick,
Attorney General of Newfoundland and
Labrador and Canadian Labour Congress
Interveners
Official English Translation
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 78)
Deschamps J. (McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ. concurring)
______________________________
Reference re Employment Insurance Act (Can.), ss. 22 and 23 , [2005] 2 S.C.R. 669, 2005 SCC 56
Attorney General of Canada Appellant
v.
Attorney General of Quebec Respondent
and
Attorney General of New Brunswick,
Attorney General of Newfoundland and
Labrador and Canadian Labour Congress Interveners
Indexed as: Reference re Employment Insurance Act (Can.), ss. 22 and 23
Neutral citation: 2005 SCC 56.
File No.: 30187.
2005: January 11; 2005: October 20.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for quebec
Constitutional law — Division of powers — Unemployment insurance — Maternity benefits and parental benefits — Whether provisions of federal employment insurance statute relating to maternity benefits and parental benefits intra vires Parliament — Constitution Act, 1867, ss. 91 (2A), 92(13) , 92(16) — Employment Insurance Act, S.C. 1996, c. 23, ss. 22 , 23 .
The government of Quebec submitted questions concerning the constitutional validity of ss. 22 and 23 of the Employment Insurance Act to the Court of Appeal. In essence, these provisions allow a woman who is not working because she is pregnant, and a person who is absent from the workplace to care for a newborn or an adopted child, to receive employment insurance benefits. The Court of Appeal issued an opinion to the effect that ss. 22 and 23 are unconstitutional because the matters to which they apply are under provincial jurisdiction.
Held: The appeal should be allowed. Sections 22 and 23 of the Employment Insurance Act are constitutional.
It was open to Parliament to enact ss. 22 and 23 based on the jurisdiction assigned to it by s. 91 (2A) of the Constitution Act, 1867 in relation to unemployment insurance. The provision of income replacement benefits during maternity leave and parental leave does not trench on the provincial jurisdiction over property and civil rights and may validly be included in the Employment Insurance Act . [3] [77]
The context in which the provision relating to maternity benefits was enacted, and its language and effect show that the pith and substance of the benefits is the replacement of the employment income of insured women whose earnings are interrupted when they are pregnant. As can be seen from the context in which the first unemployment insurance legislation was enacted, Parliament’s intention was to curb the problem of unemployment. Although many workers, including pregnant women, were originally excluded, special benefits were instituted, after women had entered the labour market in large numbers, to compensate for the interruption of their earnings that resulted from pregnancy. It is quite clear from the text of the provision that benefits are paid to a woman who loses her employment income because of her pregnancy if she held insurable employment during the period required by the Act. Also, the primary effect of the measure is to replace, in part, employment income. Although the secondary effect is to enable women to prepare for childbirth, to recover physiologically and to have a period of time to take care of their families, this secondary effect does not divert the measure from its purpose or its primary effect; rather, it is a natural consequence of them. The right to take time off work is not granted in the Employment Insurance Act ; it derives from other legislation, or from an agreement between the employer and employee. Support for families and the ability to care for children are only one of the effects of the measure, and are not its pith and substance. [26] [29] [33-35]
The provision relating to maternity benefits represents a valid exercise of the federal jurisdiction over unemployment insurance. In a case such as this, where a specific power (unemployment insurance) has been detached from a more general provincial power (property and civil rights), the specific power cannot be evaluated in relation to the general power, because any evolution would then be regarded as an encroachment. Rather, it is necessary to consider the essential elements of the power and to ascertain whether the impugned measure is consistent with the natural evolution of that power. In the instant case, the pith and substance of the maternity benefits is consistent with the essence of the federal jurisdiction over unemployment insurance, namely the establishment of a public insurance program that is based on the concept of social risk and the purpose of which is to preserve workers’ economic security and ensure their re-entry into the labour market by paying income replacement benefits in the event of an interruption of employment. The decision to offer women the possibility of receiving income replacement benefits when they are off work due to pregnancy is therefore a social policy decision that is not incompatible with the concept of risk in the realm of insurance. Furthermore, to limit a public unemployment insurance plan, from a constitutional perspective, to cases in which contributors are actively seeking employment or are available for employment would amount to denying its social function. The social nature of unemployment insurance requires that Parliament be able to adapt the plan to the new realities of the workplace. An interruption of employment due to maternity can no longer be regarded as a matter of individual responsibility. Women’s connection to the labour market is well established, and their inclusion in the expression “unemployed persons” is as natural an extension as the extension involving other classes of insured persons who lose their employment income. [37] [39] [48] [56] [66] [68]
Finally, parental benefits, like maternity benefits, are in pith and substance a mechanism for providing replacement income when an interruption of employment occurs as a result of the birth or arrival of a child. It can be concluded from their pith and substance that Parliament may rely on the jurisdiction assigned to it under s. 91 (2A) of the Constitution Act, 1867 . The inclusion of this type of benefits in the unemployment insurance plan is an extension of the plan that is made necessary by the equality rights of adoptive parents and natural parents. [73] [75]
Cases Cited
Referred to: Fédération des producteurs de volailles du Québec v. Pelland, [2005] 1 S.C.R. 292, 2005 SCC 20; Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31; Hodge v. The Queen (1883), 9 App. Cas. 117; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Martin Service Station Ltd. v. Minister of National Revenue, [1977] 2 S.C.R. 996; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Reference re The Employment and Social Insurance Act, [1936] S.C.R. 427, aff’d Attorney‑General for Canada v. Attorney‑General for Ontario, [1937] A.C. 355; Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Williams v. Canada, [1992] 1 S.C.R. 877; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Attorney General of Canada v. Silk, [1983] 1 S.C.R. 335; Dick v. Deputy Attorney General of Canada, [1980] 2 S.C.R. 243; Schachter v. Canada, [1988] 3 F.C. 515.
Statutes and Regulations Cited
Act respecting labour standards, R.S.Q., c. N-1.1, ss. 81.4, 81.10.
Act to amend the Unemployment Insurance Act and the Employment and Immigration Department and Commission Act, S.C. 1990, c. 40, s. 14.
Act to amend the Unemployment Insurance Act, 1971 (No. 3), S.C. 1980-81-82-83, c. 150, s. 5.
Civil Code of Lower Canada, arts. 176, 177.
Constitution Act, 1867, ss. 91 (2A), 92(13) , (16) .
Court of Appeal Reference Act, R.S.Q., c. R-23, s. 1.
Employment and Social Insurance Act, S.C. 1935, c. 38.
Employment Insurance Act, S.C. 1996, c. 23, ss. 22 , 23 .
National Employment Commission Act, 1936, S.C. 1936, c. 7, preamble.
Supreme Court Act, R.S.C. 1985, c. S-26, s. 36 .
Unemployment Insurance Act, 1940, S.C. 1940, c. 44, First Schedule, Part II.
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 30(1).
Unemployment Insurance Commission Regulations, 1949, SOR/49-524, s. 5A [ad. SOR/50-515, Schedule A, s. II].
Authors Cited
Brun, Henri, et Guy Tremblay. Droit constitutionnel, 4e éd. Cowansville, Qué.: Yvon Blais, 2002.
Campeau, Georges. From UI to EI: Waging War on the Welfare State. Translated by Richard Howard. Vancouver: UBC Press, 2005.
Canada. Commission of Inquiry on Unemployment Insurance. Report of Commission of Inquiry on Unemployment Insurance. Ottawa: The Commission, 1986.
Canada. Committee of Inquiry into the Unemployment Insurance Act. Report of the Committee of Inquiry into the Unemployment Insurance Act. Ottawa: Queen’s Printer, 1962.
Canada. Department of Labour. Unemployment insurance in the 70's. Ottawa: Employment and Immigration Canada, 1970.
Canada. Employment and Immigration Canada. Unemployment Insurance in the 1980s. Ottawa: Employment and Immigration Canada, 1981.
Canada. House of Commons. Standing Committee on Labour, Manpower and Immigration. Minutes of Proceedings and Evidence of the Standing Committee on Labour, Manpower and Immigration, Issue No. 9, December 3, 1970, p. 9 : 28.
Canada. House of Commons. Sub‑committee on Equality Rights. Equality for All. Ottawa: Queen’s Printer, 1985.
Canada. Report of the Study for Updating the Unemployment Insurance Programme. Ottawa: Queen’s Printer, 1968.
Canada. Royal Commission on Dominion-Provincial Relations. Report of the Royal Commission on Dominion‑Provincial Relations, vol. II. Ottawa: Queen’s Printer, 1940.
Canada. Royal Commission on the Status of Women in Canada. Report of the Royal Commission on the Status of Women in Canada. Ottawa: The Commision, 1970.
Frémont, Jacques. “Assurance-chômage, maternité et adoption: les récentes modifications et leur validité” (1982-83), 17 R.J.T. 497.
Issalys, Pierre, et Gaylord Watkins. Unemployment Insurance Benefits: A Study of Administrative Procedure in the Unemployment Insurance Commission. Study prepared for the Law Reform Commission of Canada. Ottawa: Law Reform Commission of Canada, 1977.
Ledoux, Simon. L’influence du droit constitutionnel dans l’émergence et l’évolution du droit aux prestations de maternité, d’adoption et parentales au sein de la Loi sur l’assurance-chômage. Montréal: Faculté des études supérieures, Université de Montréal, octobre 1991.
Merriam‑Webster’s Collegiate Dictionary, 10th ed. Springfield, Mass.: Merriam‑Webster Inc., 1994, “unemployment insurance”.
Nouveau Petit Robert: Dictionnaire alphabétique et analogique de la langue française. Paris: Dictionnaires Le Robert, 2003, “chômage”, “chômé”, “chômeur”.
APPEAL from a judgment of the Quebec Court of Appeal (Beauregard, Pelletier and Morin JJ.A.), [2004] R.J.Q. 399, 245 D.L.R. (4th) 515, 31 C.C.E.L. (3d) 167, [2004] CLLC ¶240-004, [2004] Q.J. No. 277 (QL), on a reference re the constitutionality of ss. 22 and 23 of the Employment Insurance Act . Appeal allowed.
Claude Joyal and René Leblanc, for the appellant.
Dominique Rousseau and Pierre Christian Labeau, for the respondent.
Written submissions only by Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
Written submissions only by Barbara Barrowman, for the intervener the Attorney General of Newfoundland and Labrador.
Steven M. Barrett and Charlene Wiseman, for the intervener the Canadian Labour Congress.
English version of the judgment of the Court delivered by
1 Deschamps J. — Does Parliament have the constitutional authority to grant maternity benefits and parental benefits to individuals who take time off work to give birth to or care for a child?
2 In response to an application by the government of Quebec for an opinion under the Court of Appeal Reference Act, R.S.Q., c. R‑23, s. 1, the Court of Appeal found ss. 22 and 23 of the Employment Insurance Act, S.C. 1996, c. 23 (“EIA ”), which provide for the payment of benefits during maternity leave and parental leave, to be unconstitutional. (These provisions are reproduced in the Appendix.) In the opinion of the Court of Appeal, the matters to which those provisions apply are under provincial jurisdiction.
3 The Attorney General of Canada appealed to this Court pursuant to s. 36 of the Supreme Court Act, R.S.C. 1985, c. S‑26 . For the reasons set out below, I am of the opinion that it was open to Parliament to enact ss. 22 and 23 EIA based on the jurisdiction assigned to it by s. 91 (2A) of the Constitution Act, 1867 in relation to unemployment insurance.
1. Constitutional Questions and Positions of the Parties
4 The Chief Justice stated the constitutional questions in the same way as did the Government of Quebec in its order in council No. 244‑2002, by which it sought the reference:
1. Does s. 22 of the Employment Insurance Act encroach upon provincial legislative competence and, more particularly, provincial legislative competence over property and civil rights and matters of a merely local or private nature under ss. 92(13) and 92(16) of the Constitution Act, 1867 ?
2. Does s. 23 of the Employment Insurance Act encroach upon provincial legislative competence and, more particularly, provincial legislative competence over property and civil rights and matters of a merely local or private nature under ss. 92(13) and 92(16) of the Constitution Act, 1867 ?
3. Is s. 22 of the Employment Insurance Act ultra vires the Parliament of Canada and, more particularly, does it exceed the Parliament of Canada’s legislative competence over unemployment insurance under s. 91 (2A) of the Constitution Act, 1867 ?
4. Is s. 23 of the Employment Insurance Act ultra vires the Parliament of Canada and, more particularly, does it exceed the Parliament of Canada’s legislative competence over unemployment insurance under s. 91 (2A) of the Constitution Act, 1867 ?
5 The text of the impugned provisions is appended to these reasons. In essence, the provisions allow a woman who is not working because she is pregnant, and a person who is absent from the workplace to care for a newborn or an adopted child, to receive employment insurance benefits.
6 The Attorney General of Quebec argues that [translation] “the purpose of [maternity benefits and parental] benefits is to support families and to help parents care for their child when the child is born or adopted, in a context in which both the labour market and the social realities that stem from it are in a state of flux” (respondent’s factum, at para. 20). From this perspective, the benefits in issue are, in pith and substance, a social security and assistance measure that trenches on the province’s jurisdiction over property and civil rights or over matters of a purely local nature under s. 92(13) and (16) of the Constitution Act, 1867 . In the submission of the Attorney General of Quebec, the purpose of the benefits is different from the purpose of the EIA , which is to establish a plan for insurance against the risk of unemployment.
7 The Attorney General of Canada submits that [translation] “the essential characteristic of . . . [maternity benefits and parental] benefits is that they provide temporary income for pregnant women or parents who have paid premiums and held insurable employment for the required number of hours and have lost their employment income because of a pregnancy or in order to care for a child” (appellant’s factum, at para. 32). In the submission of the Attorney General of Canada, neither the purpose nor the effect of the provisions is to create a plan for maternity leave or parental leave.
2. Analysis
2.1 Principles of Interpretation
8 It is rare that all the subjects dealt with in a statute fall entirely under a single head of power. As a result, disputes relating to the division of powers arise frequently. Because a decision regarding the scope of the powers assigned by the Constitution Act, 1867 has undeniable social and political consequences, the Court approaches the task assigned to it by the law with considerable circumspection. The Court has developed an analytical framework to guide it in making its decision. It must first seek to determine the pith and substance, or dominant characteristic, of the statute or provision and then identify the head of power to which that characteristic is most closely related: Fédération des producteurs de volailles du Québec v. Pelland, [2005] 1 S.C.R. 292, 2005 SCC 20; Reference re Same‑Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31. Since each level of government may legislate in relation to the matters within its jurisdiction, it did not take the Privy Council long to recognize that the classes set out in ss. 91 and 92 of the Constitution Act, 1867 are not watertight compartments, and to set forth the “double aspect” doctrine: Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at p. 130, and Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96 (P.C.), at pp. 107‑8 and 116‑17. The power of one level of government to legislate in relation to one aspect of a matter takes nothing away from the power of the other level to control another aspect within its own jurisdiction. If, however, the statute or provision intrudes into a field of jurisdiction that does not belong to the authority that enacted it, the court must determine whether it is nonetheless valid because it is part of a valid legislative scheme and is sufficiently integrated into that scheme: Kitkatla, at para. 58; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641.
9 At the first stage of the analysis, in order to identify the head of power, the Court takes a progressive approach to ensure that Confederation can be adapted to new social realities. The Court has on numerous occasions cited the “living tree” metaphor, and we need not revisit it here: Reference re Same‑Sex Marriage, at para. 29. While the debates or correspondence relating to the constitutional amendment are relevant to the analysis as regards the context, they are not conclusive as to the precise scope of the legislative competence. They reflect, to a large extent, the society of the day, whereas the competence is essentially dynamic: Martin Service Station Ltd. v. Minister of National Revenue, [1977] 2 S.C.R. 996, at p. 1006. In giving them predominant weight, the Quebec Court of Appeal adopted an original intent approach to interpreting the Constitution rather than the progressive approach the Court has taken for a number of years.
10 A progressive interpretation cannot, however, be used to justify Parliament in encroaching on a field of provincial jurisdiction. To derive the evolution of constitutional powers from the structure of Canada is delicate, as what that structure is will often depend on a given court’s view of what federalism is. What are regarded as the characteristic features of federalism may vary from one judge to another, and will be based on political rather than legal notions. The task of maintaining the balance between federal and provincial powers falls primarily to governments. If an issue comes before a court, the court must refer to the framers’ description of the power in order to identify its essential components, and must be guided by the way in which courts have interpreted the power in the past. In this area, the meaning of the words used may be adapted to modern‑day realities, in a manner consistent with the separation of powers of the executive, legislative and judicial branches.
11 Some heads that set forth narrow powers leave little room for interpretation. Other, broader, heads result in legislation that can have several aspects.
12 In the instant case, the Attorney General of Quebec does not dispute that the EIA considered as a whole, or more specifically the regular benefits, come within Parliament’s jurisdiction over unemployment insurance (s. 91 (2A) of the Constitution Act, 1867 ). The only issue is the constitutionality of maternity benefits and parental benefits.
13 Although four separate constitutional questions were stated, a single approach will apply to the entire analysis. It is therefore important to begin by determining what the pith and substance or dominant characteristic of the impugned provisions is before identifying the head of power to which the matter relates.
14 The earliest parental benefits resulted from an extension of the maternity benefits that had been adopted more than ten years earlier. I must begin with an analysis of maternity benefits. The determination of the pith and substance of maternity benefits will necessarily have an impact on the determination of the pith and substance of parental benefits.
2.2 Pith and Substance of Maternity Benefits
15 The pith and substance or essential characteristic of a provision may be revealed by the provision’s purpose or effects: Kitkatla, at para. 53. The purpose of a provision is the goal pursued by Parliament in enacting it. To consider the effect of a provision is to examine its practical or legal consequences: Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Attorney‑General for Alberta v. Attorney‑General for Canada, [1939] A.C. 117 (P.C.). These two tests for determining pith and substance, namely purpose and effect, will be examined in turn.
2.2.1 Purpose of Maternity Benefits
16 The purpose of a provision may be identified from its context or be set out in the enactment itself. To identify the purpose, it is often helpful to identify the problem Parliament was seeking to remedy. The context in which a statute is enacted thus often provides information that is relevant to the review of the provision. I will begin the analysis with the Unemployment Insurance Act, 1940, S.C. 1940, c. 44 (“UIA, 1940”), which did not provide for maternity benefits, before examining the context in which maternity benefits were introduced, and then the text of the impugned provision.
2.2.1.1 Context in Which the UIA, 1940 Was Enacted
17 In the late 1930s, Parliament considered unemployment to be the most urgent national problem: National Employment Commission Act, 1936, S.C. 1936, c. 7, preamble, and Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 534. From this perspective, it enacted the first unemployment insurance legislation: Employment and Social Insurance Act, S.C. 1935, c. 38. However, that Act was declared to be unconstitutional because it related to a matter within the competence of the provinces: Reference re The Employment and Social Insurance Act, [1936] S.C.R. 427, aff’d Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 355 (P.C.). In 1940, an amendment to the Constitution Act, 1867 gave Parliament jurisdiction over unemployment insurance. The UIA, 1940 was then enacted. It essentially restated the provisions of the Employment and Social Insurance Act that had been declared unconstitutional a few years earlier. It provided for the payment of benefits to unemployed persons who were capable of and available for work, but unable to find employment.
18 Over the years, numerous amendments were made to the original Act, generally to expand qualifying conditions, increase benefits and eliminate inequities, but the Court found in 1988 that the basic thrust had remained constant: Hills, at p. 535. The amendments were designed. In Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, at p. 10, Wilson J. said that the overall purpose of the Act was to make benefits available to the unemployed. In Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, at p. 41, La Forest J., quoting the words of Lacombe J., who was on the panel of the Federal Court of Appeal in that case, described the purpose of the Unemployment Insurance Act, 1971, which seems no different from the purpose of the current Act, as follows:
. . . to create a social insurance plan to compensate unemployed workers for loss of income from their employment and to provide them with economic and social security for a time, thus assisting them in returning to the labour market.
In Williams v. Canada, [1992] 1 S.C.R. 877, Gonthier J. added that the purpose behind unemployment insurance benefits
looks to the past, present and future. Benefits are contingent on qualifying employment in the past. They are meant to provide income and security for the present, in lieu of the employment income which has been lost. However, the benefits also look to the future, enabling the recipient to find a new job without hardship and with a sense of security. [p. 895]
19 The first express provisions regarding women attest to the social mores of the day: women were expected to be supported by their husbands, and to stop working after they were married. A regulatory provision disqualified women for a period of two years after they were married, unless they met a long series of conditions: Unemployment Insurance Commission Regulations, 1949, SOR/49‑524, s. 5A (ad. SOR/50‑515, Schedule A, s. II). It is worth noting that in 1950, women in Quebec could neither contract (art. 177 of the Civil Code of Lower Canada) nor appear in judicial proceedings (art. 176) without their husbands’ consent or assistance. Very little value was placed in women’s work. In a report recommending that the eligibility criteria for pregnant women and mothers of young children be made more restrictive, the following statement was made:
By reason of the ability of some married women who are not the sole support of their household to work in industry or not work, as they choose, they have an unique ability to move into and out of the labour force at will.
(Report of the Committee of Inquiry into the Unemployment Insurance Act (November 1962) (Gill Report), at p. 133)
While working was not exactly regarded as a whim for a woman whose husband was working, it was considered to be optional and unusual at the time. From this perspective, it is easy to understand why women’s claims for benefits were looked on as suspect.
2.2.1.2 Context in Which Maternity Benefits Were Adopted
20 By the 1960s, profound changes were under way that would have a dramatic impact on Canadian society. Technological developments, the increasing incidence of part‑time work and the entry of women into the labour market in large numbers prompted public discussion about the new challenges that were now an inherent part of the labour market. Despite this evolution of the labour market, some categories of employment, such as hospital workers, teachers and federal and provincial public servants, were excluded from the plan. Economic insecurity was no longer the exclusive preserve of the most impoverished members of society. On the question of how women were treated, the Report of the Study for Updating the Unemployment Insurance Programme (1968) (Cousineau Report), which was published only six years after the Gill Report, observed (at p. 28):
The Labour Force Participation Rate of married women between 20 and 65 grew from 22.5% in 1961 to 30.5% in 1967. This is due to a number of factors which we cannot explore here but the consequence of such an increased labour force participation of the females is to render the procedures discriminating against women in the operations of the present system, most objectionable. It has been possible up to now to postulate a tenuous attachment to the labour force on the part of married women and their lower “registered” unemployment rate would seem to support the view that married women exit from labour force activities in some substantial proportion when they become unemployed. However, there are reasons to believe that “women become more firmly attached to the labour force”. Consequently, there will be a need to adapt the unemployment compensation system to deal with it.
21 The government came to understand that a number of provisions had become anachronistic. The UIA, 1940 was completely revised. In the White Paper entitled Unemployment Insurance in the 70’s (1970), at pp. 19 and 22, the proposed maternity benefits were described as follows:
Under the existing legislation, an insured person is entitled to benefits (1) if he has experienced an interruption of earnings and is therefore unemployed, (2) if he is capable and available for work, and (3) if he is unable to find suitable employment.
. . .
The proposed plan retains the three main conditions for eligibility listed above. However, it expands interruption of earnings to include maternity, retirement and sickness. . . .
. . .
The new special benefits remove the anomalies from the present Act concerning these three groups and provide them with benefits based on a realistic appraisal of what their particular interruption of earnings means in the context of the work force of today.
22 The report of the Standing Committee on Labour, Manpower and Immigration, which was tabled after the White Paper was considered, also contains comments regarding the purpose of the new maternity and sickness benefits (Minutes of Proceedings and Evidence of the Standing Committee on Labour, Manpower and Immigration, Issue No. 9, December 3, 1970, at p. 9 : 28):
These additional benefits represent an adjustment in the economic security system to recognize the contingencies generated by a world in which women are a large portion of the labour force and in which a major segment of the population has no protection against interruption of earnings due to sickness.
23 As is apparent from this brief historical overview, the fact that women were initially discriminated against can be attributed primarily to the fact that they were not regarded as full participants in the labour market. The entry of large numbers of women into the labour market led to an awareness of their role and of the very real loss of income they suffered when their work was interrupted as a result of pregnancy. This is the context in which maternity benefits were adopted: Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48 (“UIA, 1971”), s. 30(1).
24 The purpose of the extension was to give women who had contributed to the plan the right to receive income replacement benefits. The new benefits were intended to provide pregnant women with economic and social security on a temporary basis while at the same time helping them to return to the labour market. In addition to the purely economic income replacement aspect, maternity benefits, like regular benefits, would ensure continued employability and reintegration into the labour market.
2.2.1.3 Text of the Provision
25 The text of the provision may sometimes include a clear statement of Parliament’s purpose. In the case at bar, the provision, stripped of its technical aspects, reads as follows:
(1) [B]enefits are payable to a . . . claimant [who has 600 or more hours of insurable employment in her qualifying period and] who proves her pregnancy [even if she cannot prove that she was capable of or available for work].
. . .
(3) Where . . . any allowances, money or other benefits are payable to the claimant for that pregnancy under a provincial law, the benefits payable to the claimant under this Act shall be reduced or eliminated as prescribed.
26 It can be seen from the text that benefits are paid to a woman who loses her employment income because of her pregnancy if she held insurable employment during the period required by the EIA . The primary purpose is to provide women in this position with income replacement benefits.
2.2.2 Effect of the Provision
27 A measure may have effects that go beyond the initial aim. Those effects can be used to assess its constitutional validity. For instance, in Saumur, legislation relating to the administration of streets was held to be unconstitutional because its preponderant effect showed that it was operating as a censorship mechanism. Thus, the effect of the law cannot be disregarded.
28 In the instant case, the effect of the provision is to enable insured pregnant women to have access to financial resources at a time when they are not receiving their employment income.
29 However, these resources also make it possible for them to take time off work for physiological reasons associated with their pregnancies, and to take care of their families for longer periods than if they were compelled to return to work early because they were impecunious. The primary effect is therefore to replace, in part, these women’s employment income, but the secondary effect is to enable them to prepare for childbirth, to recover physiologically and to have a period of time to take care of their families.
30 The broadening of maternity benefits put the emphasis on the function of replacing income so that women could care for their children. When the UIA, 1971 was enacted, s. 30(1) provided for the payment of benefits during a 15‑week period straddling the delivery date. The fact that benefits would be paid only for the weeks on either side of that date suggests a connection between the benefits and the physical limitations associated with pregnancy. There are a number of sources in which it is argued that at the time when maternity benefits were introduced, the principal justification for the recommendations in favour of adopting such a plan was the mother’s physical inability to work during the period before and after the birth of the child: J. Frémont, “Assurance‑chômage, maternité et adoption: les récentes modifications et leur validité” (1982‑83), 17 R.J.T. 497, at p. 503; P. Issalys and G. Watkins, Unemployment Insurance Benefits: A Study of Administrative Procedure in the Unemployment Insurance Commission (1977), at p. 11; Employment and Immigration Canada, Unemployment Insurance in the 1980s (1981), at p. 67; Canada, Report of the Royal Commission on the Status of Women in Canada (1970), at p. 84. In Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183, at p. 190, Ritchie J. quoted the following comment by Collier J., who was sitting as an Umpire:
I do not know the purpose of the legislators in injecting s. 46 into the 1971 legislation. It was suggested that, pre‑1971, there was an assumption that women eight weeks before giving birth and for six weeks after, were, generally speaking, not capable of nor available for work . . . .
31 However, a look at how these benefits have been used over the years reveals that the weeks women chose to be absent were based on the childcare function rather than on a real inability to work caused by physical incapacity: report of the Parliamentary Committee on Equality Rights, Equality for All (1985) (Boyer Report), ch. 2, at p. 10. In fact, there are few people who would still venture to say that, other than in exceptional cases, women are incapable of working as a result of being pregnant, although it is recognized that they are physically unable to work during a brief period before and after the delivery date.
32 The flexibility introduced into the rules, which allow women to choose the weeks when they receive benefits, shows that the function of replacing income during the period when mothers are caring for their children has become more important than it was when the original provisions were enacted. It would not be possible to observe this accentuated secondary effect, however, if women were not entitled to receive income replacement benefits in the first place. The secondary effect is therefore not unrelated to the purpose of the provision and does not pervert the intention behind it.
33 Parliament’s intention is to replace interrupted earnings, and that is the primary effect of the measure. The fact that the primary effect corresponds to the actual purpose is neither conclusive nor unusual. If the effect were not consistent with the purpose, the legislation would be problematic. An analysis of the effect becomes informative if the secondary effects show that the legislation has been diverted from its stated goal. That is not the case here. While women can receive income replacement benefits, they may do so only when they are absent from work due to pregnancy. The right to take time off work is not granted in the EIA ; it derives from other legislation, or from an agreement between the employer and employee. The secondary effect therefore does not divert the measure from its purpose or its primary effect; rather, it is a natural consequence of them.
2.2.3 Conclusion Regarding the Provision’s Pith and Substance
34 As can be seen from the context in which the first unemployment insurance legislation was enacted, Parliament’s intention was to curb the problem of unemployment. Benefit amounts were not very high, and many workers, including pregnant women, were excluded. After women entered the labour market in large numbers, special benefits were instituted to compensate for the interruption of their earnings that resulted from pregnancy. The context in which the provision was enacted, and its language and effect, bring to light the pith and substance, or essential characteristic, of the benefits: they replace the employment income of insured women whose earnings are interrupted when they are pregnant.
35 The argument of the Attorney General of Quebec, that the purpose of maternity benefits is to support families and to enable women to care for their children at the time of birth, cannot be accepted. No period of leave is granted by the EIA . Maternity leave is governed by other legislation or by arrangements between employers and employees. Although support for families and the ability to care for children may be one of the effects of the measure, that is not its pith and substance. The fundamental objective of the maternity benefits plan is to protect the workers’ incomes from the time when they lose or cease to hold their employment to the time when they return to the labour market.
2.3 Identification of the Head of Power
36 Once the pith and substance of a provision has been determined, the head of power to which the pith and substance relates must be identified. The Attorney General of Quebec contends that the provision falls within Quebec’s jurisdiction over social matters, because of its connection with property and civil rights and matters of a merely local or private nature (ss. 92 (13) and 92(1