Canada (Procureur général) c. Lesiuk

Canada (Procureur général) c. Lesiuk
Base de données – Cour (s)
Décisions de la Cour d'appel fédérale
Date
2003-01-08
Référence neutre
2003 CAF 3
Numéro de dossier
A-281-01
Notes
Décision rapportée
Contenu de la décision
Recueil des arrêts de la Cour fédérale Canada (Procureur général) c. Lesiuk (C.A.) [2003] 2 C.F. 697
Date: 20030108
Docket: A-281-01
Neutral citation: 2003 FCA 3
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
KELLY LESIUK
Respondent
and
WOMEN'S LEGAL EDUCATION AND ACTION FUND ("LEAF"),
INCOME SECURITY ADVOCACY CENTRE
Interveners
Heard at Edmonton, Alberta, on November 19 and 20, 2002
Judgment delivered at Ottawa, Ontario, on January 8, 2003
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
Date: 20030108
Docket: A-281-01
Neutral citation: 2003 FCA 3
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
KELLY LESIUK
Respondent
and
WOMEN'S LEGAL EDUCATION AND ACTION FUND ("LEAF"),
INCOME SECURITY ADVOCACY CENTRE
Interveners
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] This application for judicial review against a decision (CUB 51142) of an Umpire rendered on March 22, 2001 raises the following questions: Did the Umpire err when he concluded that subsections 6(1) and 7(2) of the Employment Insurance Act, S.C. 1996, c. 23 as later amended (Act), which determine the eligibility requirements to unemployment benefits, violate subsection 15(1) of the Canadian Charter of Rights and Freedoms (Charter) and, therefore, should be ignored as if the provisions had never been enacted? These provisions mandate a regime based on hours worked for minimum eligibility requirements (MERs) which, at the time of the Umpire's decision, were 700 hours for general and special maternity benefits. On December 31st, 2000, the minimum requirement for maternity benefits was lowered to 600 hours. According to counsel for the applicant, the legislative change came as a result of a study of the operation of the special benefits program: see Human Resources Development Canada, 1999 Monitoring and Assessment Report, Application Record, vol. 10, tab D, page 7804.
[2] Subsections 6(1) and 7(2) read at the time:
6. (1) In this Part,
....
"major attachment claimant" means a claimant who qualifies to receive benefits and has 700 or more hours of insurable employment in their qualifying period;
...
6. (1) Les définitions qui suivent s'appliquent à la présente partie.
....
« _prestataire de la première catégorie_ » Prestataire qui remplit les conditions requises pour recevoir des prestations et qui a exercé un emploi assurable pendant au moins 700 heures au cours de sa période de référence.
...
7. (2) An insured person, other than a new entrant or a re-entrant to the labour force, qualifies if the person
(a) has had an interruption of earnings from employment; and
(b) has had during their qualifying period at least the number of hours of insurable employment set out in the following table in relation to the regional rate of unemployment that applies to the person.
7. (2) L'assuré autre qu'une personne qui devient ou redevient membre de la population active remplit les conditions requises si, à la fois_:
a) il y a eu arrêt de la rémunération provenant de son emploi;
b) il a, au cours de sa période de référence, exercé un emploi assurable pendant au moins le nombre d'heures indiqué au tableau qui suit en fonction du taux régional de chômage qui lui est applicable.
TABLE
=========================================
Regional Rate of Required Number of Hours Unemployment of Insurable Employment in Qualifying Period -----------------------
6% and under 700
more than 6% but not more than 7% 665
.....
TABLEAU
=========================================
Taux régional de chômage Nombre d'heures d'emploi assurable requis au cours de période de référence
-----------------------
6_% et moins 700
plus de 6_% mais au plus 7_% 665
....
[3] For reasons that I will discuss after a brief summary of the facts and proceedings leading to the present application for judicial review, I believe the learned Umpire misapprehended and misconstrued the law and that his decision cannot stand.
Facts and procedure
[4] The respondent, Kelly Lesiuk, worked part-time from 1993 to 1998 as a registered nurse at the Brandon General Hospital. In mid-August, 1997, her husband accepted employment in Winnipeg, a two-hour drive from Brandon. It was decided that he would stay in Winnipeg during the week and return to Brandon on weekends so that she would be able to pick up some shift work.
[5] In March of 1998, after their house in Brandon was sold, the respondent and her 3-year-old child rejoined her husband in Winnipeg. Shortly after arriving, she applied for regular employment insurance ("EI") benefits. The EI Commission advised her that she did not qualify for benefits. She had worked 667 hours in her qualifying period. Qualification, as per subsection 7(2) of the Act, required 700 hours. She was 33 hours short.
[6] In April, 1998, the respondent's doctor recommended that she not work as she was now pregnant with a second child and the substantial weight increase would not be suitable to the heavy physical labour required of registered nurses. Qualification for special maternity or parental benefits were also contingent on 700 hours worked in the qualifying period.
[7] The respondent appealed the Commission's rejection of her benefits to the Board of Referees. On November 19, 1998, the Board applied the provisions of the Act and denied her appeal.
[8] The respondent appealed the Board's decision to the Umpire. Before the Umpire, it was argued that the eligibility requirements of the Act discriminate against women who, historically, have had the primary responsibility for childcare. On March 22, 2001, the Umpire rendered a decision that subsections 6(1) and 7(2) of the Act, the MERs, are unconstitutional violations of the respondent's section 15 equality rights under the Charter. He referred the matter back to the Board for a rehearing, but this time as if the provisions in question had never been enacted.
[9] The Applicant, Attorney General of Canada, seeks judicial review of this decision pursuant to sections 18.1 and 28 of the Federal Court Act. He seeks to have the Umpire's decision set aside and the decision of the Board of Referees restored.
The decision of the Umpire
[10] After a review of the facts and the history of employment insurance legislation, the Umpire proceeded to apply the approach adopted by the Supreme Court of Canada in Law v. Canada, [1999] 1 S.C.R. 497 when analysing potential breaches of section 15 of the Charter. This process led him to the following conclusions:
a) Subsections 6(1) and 7(2) of the Act impose differential treatment between the claimant and others.
The minimum eligibility requirements for benefits set out in subsections 6(1) and 7(2) impose differential treatment, based on one or more personal characteristics, between Kelly Lesiuk and some other persons or groups to whom she may properly be compared.
On the evidence presented, Kelly Lesiuk has established on balance that the MERs for benefits in subsections 6(1) and 7(2) draw a distinction between her and other workers. An eligibility standard that is based on the average number of hours worked per week by Canadian employees has a differential impact on those who, because of parental and family commitments, find it difficult, if not impossible to meet that standard. The average woman is disadvantaged because men work, on average 39 hours per week in paid employment, while women work, on average, only 30 hours. The EI requirements are based on 35 hours per week, thus disadvantaging women. Moreover, the evidence noted that women continue to perform two-thirds of unpaid labour, leaving them with fewer hours to devote to paid employment (see paragraph 50 of his decision).
The system based on hours worked disproportionately affects women by increasing the number of the hours of work required to qualify and lowering the number of weeks of benefits if they are unable to increase their hours for work.
b) The differential treatment is based on an enumerated or analogous ground. I reproduce paragraph 59 of his decision:
On the evidence presented, I am satisfied that the status of being in a parent and child relationship is a ground analogous to those enumerated in s. 15(1). Parenthood is central to one's identity and personhood: it is a status that is immutable. It is true that the status will change when the children are no longer in need of a caregiver, but that does not change the fact that their status is immutable until that time comes. The appellant's [Kelly Lesiuk's] status as a parent and primary caregiver is one that the government has no legitimate interest in expecting her to change to receive equal treatment under the law. When a mother works part-time because of her part-time parental responsibilities, she should not receive inferior employment insurance coverage on that account.
c) The purpose or effect is substantively discriminatory.
The eligibility requirements demean the essential 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 work force attachment. By basing the threshold for eligibility and the definition of work attachment on the average work week of 35 hours, the eligibility requirements fail to take into account the fact that women's average work week in the paid labour force (30 hours) is 85% of men's average work week (35 hours). I note in passing that this actually appears to be a mis-statement of the evidence since 35 hours is the average for all workers. Since women continue to spend approximately twice as much time doing unpaid work as men, women are predominantly affected.
The definition of major work force attachment under the Act violates Kelly Lesiuk's dignity even more directly since the entrance requirement measures and defines who is worthy of employment insurance benefits. Although a woman, under the present legislation, who works part-time year round has a strong attachment to the workforce, her attachment to the workforce is less than that of a man who is able to easily accumulate employment insurance benefits by working 700 hours in the summer and collecting employment insurance benefits every winter. Since the appellant's attachment to the work force is deemed inadequate, not because she lacks regular employment, but because her weekly hours of paid employment are limited by her unpaid obligations, the dignity of the part time working mother with children is more directly violated (see paragraph 66 of the decision).
If, as in the case of the appellant, shift availability or child-care availability prevents her from reaching the 700-hour threshold, she faces a complete denial of benefits if her employment is interrupted and receives no protection from the employment insurance premiums she has paid. This has the effect of promoting the view that a woman is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society (see paragraph 67 of the decision).
[11] The Umpire reviewed the impugned provisions in light of the principles applicable to an analysis under section 1 of the Charter. He concluded that they could not be saved by that section. In his view, the legislation was not pressing and substantial. He expressed himself in the following terms at paragraph 70 of his decision:
I am not satisfied on balance that the legislation is pressing and substantial. I have difficulty accepting that the objective of the variable (420-700) minimum eligibility requirements is to ensure that individuals who receive regular benefits have some work force attachment, relative to the rate of unemployment in their area of residence. Nor does the system discourage, as it was contended, misuse. As noted earlier, the premise that work force attachment can be measured by a single criterion of hours worked in a year is unique to Canada. Even Dr. Nakamura, who gave evidence on behalf of the respondent, accepted that a person could work just two hours a week, year after year and be strongly attached. In my view, the present eligibility requirements reward those who have the freedom of working long intensive hours at the expense of the family caregiver. Nor does the system discourage misuse.
[12] In addition, he ruled that the MERs found in the impugned provisions were not rationally connected to the objective of ensuring that the recipients of benefits have a minimum level of work force attachment. Moreover, the lowering of the number of hours required to receive benefits would not detract the government objectives of encouraging work force attachment, and deterring misuse and dependence.
[13] Finally, as he did not have the power to issue declarations of invalidity as a result of the decision of this Court in Nishri v. Canada (1997), 223 N.R. 376, he concluded that an appropriate remedy was to send the matter back to a Board of Referees with instructions to rehear the respondent's appeal as if the provisions of subsections 6(1) and 7(2) had never been enacted. He found support for this remedy in the decision of our Court in Zwarich v. Canada (Attorney General), [1987] 3 F.C. 253 (F.C.A.).
Analysis of the decision
[14] Counsel for the applicant submits that the MERs in subsections 6(1) and 7(2) of the Act are consistent with section 15 of the Charter in that they entail no differential treatment, involve no enumerated or analogous ground and reveal no evidence of discrimination. The respondent takes a diametrically opposite view.
The statutory scheme
[15] The Umpire did an extensive review of the statutory scheme. I need not repeat what he said. However, I want to emphasize that the EI system is a contributory scheme which provides social insurance for Canadians who suffer a loss of income as a result of a loss of their employment or who are unable to work by reason of illness, pregnancy and childbirth or parental responsibilities for a newborn or newly-adopted child.
[16] It is in the context of such a scheme that the respondent seeks, in effect, either the complete elimination or a substantial lowering of the eligibility requirements without providing adequate or alternative parameters for the future. As will become evident when further discussing the respondent's contentions, other groups such as visible minorities, immigrants or disabled workers who fail to meet the MERs and are denied benefits could be justified in making similar claims. Indeed, in case of simply lowering the MERs, members of the respondent's group or of these other groups who would not meet the new lowered threshold would still be entitled to make the same claim on the same basis. Challenges could be made by the remaining members of these groups until, in the end, there is no threshold.
[17] In a sense, the situation on this last point is not dissimilar to that of the claimant in Granovsky v. Canada, [2000] 1 S.C.R. 703 where Mr. Granovsky applied for, and was denied, a permanent disability pension. Although not attacking the eligibility requirements to a pension as discriminatory under section 15, he was, in effect, seeking a change in these requirements by challenging the contribution requirements imposed by Parliament. As in the present instance, he admitted that Parliament could, without infringement of the Charter, create a particular type of benefit targeted at particular individuals (in Granovsky, those who have a recent work force attachment - in our case, individuals who have a commitment to the work force), but that Parliament drew the line in the wrong place. In our case, the respondent complains that Parliament either drew the wrong line or drew it at the wrong place.
[18] In his review of a legislative scheme similar to ours, before dismissing Mr. Granovsky's appeal, Binnie J., for a unanimous Court, expressed at paragraphs 9 and 14 views and concerns that are apposite here:
The CPP [Canada Pension Plan] was designed to provide social insurance for Canadians who experience a loss of earnings owing to retirement, disability, or the death of a wage-earning spouse or parent. It is not a social welfare scheme. It is a contributory plan in which Parliament has defined both the benefits and the terms of entitlement, including the level and duration of an applicant's financial contribution.
[...]
I note at the outset that the appellant seeks an extension of the s. 15(1) principles laid down in the decided cases, which is understandable, but he does so in circumstances that provide no clear boundaries for the future. If he succeeds in having the "permanence" requirement of the CPP test rewritten, for example, will courts next be asked to dilute the CPP requirement that the disability be severe? The less severely disabled will no doubt argue that their interests are no less worthy of protection than those whose disabilities are more severe. Is the legislature then precluded from targeting the permanently disabled for special programs or services (special paratransit public bus facilities for example) without making the same services and programs available to those whose disabilities are temporary, and if so, how temporary would still be sufficient to qualify?
(emphasis added)
Whether the impugned provisions result in a substantively differential treatment on the basis of one or more personal characteristics
[19] Under a subsection 15(1) analysis, the Court has to determine whether the impugned provisions impose a substantively differential treatment on the basis of one or more personal characteristics. This determination is fraught with difficulties. Although the Charter guarantees equality rights to individuals, a proper determination of the issue often requires a defining of the appropriate comparator groups against which the alleged difference in treatment will be measured: see Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at paragraph 66. In the case at bar, counsel for the respondent took an inter-sectional approach, whereby two possible freestanding personal characteristics are combined to define the group, and eventually found an analogous ground of discrimination: see Corbière v. Canada, [1999] 2 S.C.R. 203; Falkiner v. Ontario (2002), 59 O.R. (3d) 481 (Ont. C.A.). He defined the group to which Kelly Lesiuk belongs as "women in a parental status" and elected "all men" as a basis for comparison. To put it another way, women in a parental status, in his view, receive under the Act, as a result of the MERs, a treatment substantively different from men, whether in a parental status or not.
[20] At the hearing, counsel for the intervener, Women's Legal Education and Action Fund, wanted to submit a comparator group different from the one advanced by the respondent. We refused to entertain her submission as a change of comparator group could work prejudice and unfairness on both parties who, before the Umpire, proceeded under a different assumption and adduced evidence accordingly. I am sure this is the type of situation that Iacobucci J. had in mind in Law v. Canada, [1999] 1 R.C.S. 497 when, at paragraph 58, he wrote:
When identifying the relevant comparator, the natural starting point is to consider the claimant's view. It is the claimant who generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge. However, the claimant's characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups. Clearly a court cannot, ex proprio motu, evaluate a ground of discrimination not pleaded by the parties and in relation to which no evidence has been adduced: see Symes, supra, at p. 762. However, within the scope of the ground or grounds pleaded, I would not close the door on the power of a court to refine the comparison presented by the claimant where warranted.
Therefore, I shall utilize the comparator groups identified by the respondent.
[21] By definition, laws granting social benefits entail a differential treatment. In determining categories of beneficiaries and eligibility requirements, they treat differently the persons who are excluded from their scope of application and, as a result, are denied benefits. I do not think that one can argue that these persons are not subject to a substantively differential treatment. The question is whether this occurs on the basis of one or more personal characteristics. The answer to that question is not obvious in the context of the evidence that was tendered by the parties.
[22] Having regard to the relevant comparator groups, it is apparent that there are significant deficiencies in the statistical evidence which the parties have relied upon to support their positions. The applicant has relied upon studies that it admits suffer from the deficiencies pointed out by the respondent:
- some data collected in 1997 did not reflect actual experience as arbitrary adjustments or assumptions were made during the transitional period arising from the ending of the Unemployment Insurance Act qualifications and the commencement of the Employment Insurance Act qualifications;
- studies reflecting job separation rather than unemployment;
- limitations of the Canadian Out of Employment Panel data base; and
- misinterpretation of the data by one of the applicant's witnesses.
[23] The parties did agree that data in tables in the 1999 Employment Insurance Coverage Survey and Women in Canada 2000, a gender-based statistical report, could be relied upon. However, this data also presents difficulties.
[24] Although some information about a female parent in a parent/child relationship is available, that information is limited. For example, the statistics indicate that 69 percent of all women with children less than 16 years of age living at home were part of the employed work force in 1999. However, there is no data for this group identifying what proportion would be part-time workers only, what proportion of those who worked part-time in the past 12 months were unemployed in 1999 or what proportion of that group was ineligible for employment insurance benefits because of an inability to meet the minimum number of hours required to qualify for employment insurance. Information for the comparator group is similarly deficient. Without such information, it is difficult or impossible to determine the adverse effect of the minimum qualifying hours requirement on the respondent's group, as compared to the comparator group.
[25] An inference may be drawn from the statistical data that some members of the respondent's group were ineligible for employment insurance in 1999. It appears that 179,000 individuals unemployed in 1999 had worked part-time in the previous 12 months and, of that group, some were ineligible for employment insurance because they did not attain the minimum number of qualifying hours to entitle them to be benefits. However, the breakdown between men and women is not shown and there is no breakdown for women in a parent/child relationship.
[26] The data shows that for women in the 25 to 44 age group, 32.5 percent worked part-time in 1999 due to "caring for children". For all women who worked part-time in 1999, only 15.6 percent did so due to "caring for children". This may be a reasonable proxy for one portion of the respondent's group. However, it does not indicate what proportion of the respondent's group worked full-time or, indeed, what proportion was unemployed in 1999 but also worked part-time in the previous 12 months or what proportion of that group was ineligible because of the inability to meet the minimum threshold for qualifying hours.
[27] Without adequate statistical data, it would be speculative to make the type of comparisons the respondent is asking the Court to make, i.e., that the respondent's group suffers a substantively differential treatment due to the qualifying hours requirement for employment insurance benefits as compared to the comparator group.
[28] That does not mean that some generalizations cannot be made. For example, the parties agreed that those affected by the qualifying hours requirement was quite small as a portion of the total number of females in the parent/child relationship in the work force. In other words, the vast majority of those in the respondent's group are unaffected by the minimum requirement for qualifying hours: see the testimony of Dr. Nakamura to that effect, Applicant's Record, vol. 1, page 378. Small numbers alone, however, do not excuse discrimination when the individuals affected are excluded from receiving benefits. Nonetheless, the magnitude of the problem is put somewhat into perspective. This is not a case where an entire group is excluded from benefits or, indeed, where a significant portion of the group is excluded. In this respect, this case is unlike most section 15 social benefit cases: see for example Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Egan v. Canada, [1995] 2 S.C.R. 513; Collins v. Canada, [2000] 2 F.C. 3 (F.C.T.D.), affirmed on appeal [2002] 3 F.C. 320 (F.C.A.).
[29] In her testimony before the Umpire, Dr. Nakamura, who is a professor in the Department of Finance and Management Science at the University of Alberta, and who conducted a study of the impact of the new EI system on beneficiaries, confirmed that, in dealing with the respondent and her group, we are dealing with a very small subset that may have lost coverage under the new system, but that additional measures were taken to alleviate the situation. It should be recalled that the old system used weeks and hours worked instead of merely hours as eligibility requirements. Here is what she said in answer to a question put by the Umpire who was referring to part-time female parents who are between 25 and 54 years of age and who have to juggle their timetable in order to work:
THE COURT: Let us assume that the evidence establishes that women in that category, vis a vis men in that category, are being harmed. Is it fair to say that they can fall by the wayside so that we can protect the other three examples you've given?
THE WITNESS: Some people did fall by the wayside. Most of the people who are not covered under EI weren't covered under UI. There's a very - it's a very special, small subset that lost coverage in going from UI to EI, as all of the studies show. However, in addition to that, there were some things done, explicitly to try and help that sort of situation. A person in that situation almost had to have another income from somewhere.
One of the things that was done was to bring in a supplement to the child tax credit. All families which were covered for that, then got a supplement in addition to that. A second thing that was done was to try to look at the provisions for the collection of monies from an absent spouse, for instance. There were in fact a great deal of worrying about that and a great deal of looking at other aspects, other programs, to try and find some way of bringing some more help.
I guess that another key issue there, was the feeling that if you were going to take money out of the pockets of some families and give it to other families, the families that you were taking it from should be in some way - should not be worse off than the families that you are giving it to. That was a concern under both UI and EI.
(emphasis added)
(Applicant's Record, vol. 1, pages 362-363)
At page 378 of the Applicant's Record, dealing with persons who work less than 700 hours in a work year of 2000 hours, she went on to say:
The total number of people in this country, who, over a period of five or ten years do not work more than 700 hours every single year, is a very small subset of people. Including a small subset of working women.
[30] In a study released in 2000 on the impact of the new system based on hours requirements, Opinion Report, Applicant's Record, vol. 5, at page 3957, Dr. Nakamura concluded that it was "still too early to be able to definitively evaluate many of the novel features of the program, since these features were phased in over time and also the experience rating procedures will not have full effect until individual program participants have had a chance to build up benefit use histories for EI". She added that "nevertheless, certain patterns seem to be emerging". At pages 3957-3958, she wrote:
So far the indications are that the net effects of EI on the availability of work are quite small but may have resulted in somewhat shorter average unemployment spells. Careful study is needed to distinguish between program effects and the effects of changed economic conditions. Nevertheless, at this point I believe that the switch to the EI system led to a net increase in eligibility and that the numbers of workers who would have qualified under UI and failed to qualify under EI are small too.
The monthly labour force surveys conducted by Statistics Canada also suggest that it is generally true that a new job created after EI is less likely to be under 15 hours per week and more likely to be over 30 hours. Full evaluation results are needed to determine the extent to which these and other observed changes reflect the new eligibility conditions for some groups of workers or the switch from a weekly to an hourly unit of account for eligibility. Full evaluation results are also needed to establish whether the effects of EI are as anticipated with respect to workers in different types of families.
(emphasis added)
[31] In her testimony before the Umpire, she stressed some of the difficulties involved in a tinkering with the MERs for a group of workers like the respondent's group. At pages 363-365 of the Applicant's Record, vol. 1, the following exchange with the Umpire speaks to these difficulties, an important one being that there is no single group which is uniformly disadvantaged by the eligibility requirements:
THE COURT: - I agree with you, there have to be trade offs. But if the trade offs are such that they're harmful to a particular group and they fail to address them, isn't that where the legislation can fail?
THE WITNESS: How do you define this group, though? I cannot see a group there that is uniformly harmed. Within the group that I understood to be the group, 25 to 44, female, parent and with their work behaviour conditioned on their parental responsibility, there were ones helped and there were ones harmed by the legislation, that's a first thing.
Second of all, I don't know law, you know law, but I would think that in divining such a law that you were going to pass, you would have to say, how do I know if a person is in this group? Am I going to make a special bar for the people who are working short hours because they are a parent? Am I going to investigate, to ascertain if that's why they are working short hours as opposed to they are simply working short hours and they are also relatively high income and they have a nanny who takes care of their child?
There are many people who work short hours for very many reasons. Would we investigate to try and find out why they are working short hours? In welfare, we do investigate people. We do that not because anybody feels good about that, but because if you are taking money away from some and giving it to others in a way that has nothing to do with insurance principles, those who we take it from would like to know that those it's going to are less well off than them.
We haven't wanted to have that type of investigation in UI because if we have it in UI, it's intrusive, first of all. We need this to be a program for the whole society. If we were investigating all of us, it's exceedingly expensive, it's exceedingly onerous. But in addition to that, it's time consuming.
(emphasis added)
[32] In conclusion, it is fair to say that there is a dearth of probative statistical evidence with respect to the alleged differential treatment suffered by the respondent's group on the basis of personal characteristics. The evidence shows that there is no group which is uniformly adversely affected. In addition, it reveals that the new EI system has led to a net increase in eligibility and that the numbers of workers who would have qualified under the old system and failed to qualify under the new is small. It also shows that the respondent's group is a very special, small subset of these small groups of workers who have lost in the change to the new system and yet not everyone in that subset has lost because some qualified who would not have done so under the old system: see excerpt from testimony in paragraph 30.
[33] Notwithstanding that, as Iaccobuci J. said in the Law case, at paragraph 66, "an infringement of section 15(1) may be established by other means, and may exist even if there is no one similar to the claimant who is experiencing the same unfair treatment". I accept that there are other persons who share the same characteristics as the respondent and who were denied the benefits. Although I have doubts that there exists a causal relationship between the denial of benefits and the alleged characteristics, I am also willing to accept that the respondent experienced differential treatment on account of her gender and parental status.
[34] Before leaving this issue, I need to address an additional argument raised by counsel for the applicant.
[35] The claim made by the respondent is a claim made in her capacity as a "woman in a parental status who is working part-time". Indeed, the Umpire concluded at paragraph 59 of his decision that a mother who works part-time because of her unpaid responsibilities should not receive inferior employment insurance coverage on that account. Counsel for the applicant submitted that, as the statement reveals, the Umpire changed the focus from parental status alone to a combination of parental status and employment status. In so doing, he submitted that the Umpire erred in law because employment or occupational status is not an immutable personal characteristic: see Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, per Bastarache J. at paragraph 44; Corbière v. Canada, supra; Canada (Attorney General) v. Taylor (1991), 81 D.L.R. (4th) 679 (F.C.A.).
[36] With respect, I do not think that the Umpire's reference to part-time workers was meant to be a reference to a personal characteristic of the respondent. I believe such reference merely establishes the circumstances under, or the moment at, which the respondent and members of her group are discriminated. To put it differently, it is simply another way of saying that the respondent as a woman in a parental status is discriminated under the Act when she works part-time.
Whether the differential treatment suffered by the respondent is based on enumerated or analogous grounds
[37] The finding of the Umpire on the issue of analogous grounds, as these terms are used in section 15 of the Charter, is found in paragraph 59 of his decision. I have previously cited that paragraph. There is no doubt that the Umpire concluded that parental status is an analogous ground within the meaning of section 15. I believe it is fair to say, on a careful reading of his decision, that he combined it with gender to form one analogous ground: women in a parental status. I agree with him that that status is immutable until the time comes when the children are no longer in need of a caregiver. The period of immutability is, in my view, sufficiently long to satisfy the criteria for identifying new analogous grounds because the recognized ground in this case is "based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law": see Corbière v. Canada, supra, at paragraph 13 per McLachlin and Bastarache JJ.
[38] Consequently, I am satisfied that the differential treatment in the case at bar is based on an analogous ground. This brings me to the last stage of the subsection 15(1) analysis, namely whether the differential treatment discriminates.
Whether the differential treatment amounts to discrimination under subsection 15(1)
[39] The purpose of section 15 is to "prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration": see Law v. Canada, supra, at paragraph 51.
[40] It is the third stage of the subsection 15(1) analysis that is most directly involved with the concept of human dignity. The overarching question here is "whether the impugned law or provision perpetuates the view that certain persons are less capable or less worthy of recognition or value as human beings or as members of Canadian society". A claimant must show that her human dignity and/or freedom is adversely affected: see Lavoie v. Canada, [2002] S.C.J. No. 24, 2002 SCC 23, at paragraphs 42 and 47. The Supreme Court has indicated that it is to be an objective-subjective one, the objective part of which is to be understood in light of various contextual factors. As explained by Iacobucci, J. in Law, supra at paragraph 61:
Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purpose of s. 15(1).
[41] In Lovelace v. Ontario, [2002] 1 S.C.R. 950, at paragraph 55, Iacobucci, J., again for a unanimous Court, re-iterated the directed nature of the dignity inquiry:
In appreciation of the depth and complexity of the human dignity interest, the discrimination inquiry demands a full contextual analysis. However, this contextual analysis is a directed inquiry; it is focused through the application of contextual factors which have been identified as being particularly sensitive to the potential existence of substantive discrimination...
The need for a contextual analysis was once again stressed in Gosselin v. Quebec (Attorney General) 2002 SCC 84, at paragraphs 24 per McLachlin C.J. At paragraph 25, she writes for the majority:
The need for a contextual inquiry to establish whether a distinction conflicts with s. 15(1)'s purpose is the central lesson of Law.
This is understandable because the contextual analysis brings a measure of objectivity in what could otherwise be an unfair exercise in subjectivity.
[42] The Supreme Court identified four contextual factors relevant to the third stage of the discrimination analysis: i) pre-existing disadvantage, stereotyping, prejudice, or vulnerability; ii) the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual needs, capacity or circumstances of the claimant or others; iii) the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and; iv) the nature and scope of the interest affected by the impugned government activity: see Law and subsequently Lovelace, supra, at paragraphs 68-69. In Gosselin, supra, at paragraph 29, the Chief Justice indicated that these four factors, which are not exhaustive, must be considered although non