Martin v. Canada (Attorney General)

Martin v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2013-01-24
Neutral citation
2013 FCA 15
File numbers
A-243-11
Notes
Reported Decision
Decision Content
Date: 20130124
Docket: A-243-11
Citation: 2013 FCA 15
CORAM: NADON J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
CHRISTIAN MARTIN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on September 18, 2012.
Judgment delivered at Ottawa, Ontario, on January 24, 2013.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: DAWSON J.A.
STRATAS J.A.
Date: 20130124
Docket: A-243-11
Citation: 2013 FCA 15
CORAM: NADON J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
CHRISTIAN MARTIN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] In April 2009, Paula Critchley, the applicant’s spouse, gave birth to twin girls. The issue underlying the questions which we must answer in this proceeding is whether the applicant and his spouse are both entitled to 35 weeks of parental benefits under the Employment Insurance Act, S.C. 1996, c. 23 (“the Act”).
[2] Before us is an application for judicial review of a decision of an Umpire (Mr. Justice Zinn of the Federal Court), CUB 76899, dated May 31, 2011, which allowed the Canada Employment Insurance Commission’s (“the Commission”) appeal from a decision of the Board of Referees (“the Board”) rendered on September 11, 2009.
[3] By its decision, the Board held that the applicant was qualified for a benefit period by virtue of subsection 12(4) of the Act. More particularly, the Board was of the view that the applicant was entitled to receive 35 weeks of parental benefits notwithstanding that his spouse had applied and been approved for 35 weeks of parental benefits. In so concluding, the Board reversed the Commission’s determination that the applicant was not entitled to 35 weeks of parental benefits. On May 29, 2009, the Commission had written to the applicant explaining its decision in the following terms:
We are writing to inform you that we cannot pay you parental employment insurance benefits as of April 26, 2009.
This is because you have not proven that you are the parent who will be taking the 35 weeks of parental benefits for this birth. Your children’s mother has applied for the 35 weeks of parental [benefits] and you have stated that you are agreeable to her being paid these benefits. I appreciate that you would like to be paid 35 weeks of parental benefits as well due to the fact that your wife gave birth to twins. But a multiple birth or multiple adoption, for purposes of employment benefits, is treated as a single birth or a single adoption.
[4] The Board also held that it had no jurisdiction to deal with the arguments raised by the applicant, and in the alternative, that in denying him the right to parental benefits, the provisions of the Act at issue infringed his rights under subsection 15(1) the Canadian Charter of Rights and Freedom (“the Charter”).
[5] In allowing the Commission’s appeal from the Board’s decision, the Umpire held that the Board had erred in its interpretation of the relevant provisions of the Act and that subsection 2(1), and sections 7, 8, 12, and 23 of the Act did not infringe the applicant’s rights under subsection 15(1) of the Charter. The Umpire was also of the view that the Board was correct in its determination that it had no jurisdiction to address the Charter issues raised by the applicant.
The Facts
[6] The facts are straightforward and are not disputed.
[7] In April 2009, the applicant and his spouse became parents of twin girls. On April 27, 2009, the applicant filed an application for parental benefits with the Commission, in which he indicated that he was claiming the maximum 35 weeks of benefits available for the care of his children. He further stated that he was employed by Natural Resources Canada and that he was taking parental leave for the period of April 24, 2009 to January 11, 2010. Nine days later, on May 6, 2009, the applicant further wrote to the Commission, requesting that his claim for parental benefits be considered separately from that made by his spouse, whose application for 35 weeks of parental benefits had already been approved by the Commission.
[8] As I have already indicated, the Commission wrote to the applicant on May 29, 2009, advising him that his application for 35 weeks of parental benefits could not be accepted because his spouse’s application had already been approved, pointing out to the applicant that the Act treated multiple births and adoptions as single births and adoptions.
[9] Not satisfied with the Commission’s response, the applicant appealed its decision to the Board which concluded that he and his spouse were separately entitled to 35 weeks of parental benefits under the Act. The Board began by stating the question it had to determine, namely, whether the applicant was disqualified for parental benefits for the care of the children because his spouse had already qualified for benefits for their care. The Board determined that the effect of paragraph 12(4)(b) of the Act was to limit a claimant to 35 weeks of benefits for the care of a child resulting from a single pregnancy, adding that “this subsection allows for a claim for each pregnancy, and not limited to only one pregnancy”.
[10] However, in the Board’s view, the combined effect of subsections 12(1) and 12(4) with paragraph 12(3)(b) of the Act was that each claimant, i.e., the applicant and his spouse, could make a claim under paragraph 12(3)(b) because a benefit period had been established for each of them and that subsection 12(4) could not be read without reading in the word “to a claimant” at the end of the introductory sentence of the subsection. Consequently, the applicant could claim 35 weeks of parental benefits for one child and his spouse could claim 35 weeks for the other child. Thus, in the Board’s view, “the parents’ claims are limited to 35 weeks per claimant per child. Two claimants making separate claims for separate children are entitled to make separate 35 week claims”.
[11] The Board’s decision led to the Commission’s appeal before the Umpire, whose decision is now before us in this judicial review application.
The Umpire’s Decision
[12] The first issue which the Umpire addressed in his reasons was the interpretation of the Act. He began by highlighting the differing interpretations of the Act on which the respective positions of the parties depended, namely: in the case of the respondent, that the Act allowed 35 weeks of parental leave for each pregnancy, irrespective of the number of children resulting from that pregnancy; and, in the case of the applicant, that the Act allowed 35 weeks of parental leave for each child born of a pregnancy, with each parent entitled to a maximum of 35 weeks.
[13] The Umpire then stated that the applicant’s interpretation was based on subsection 12(3) of the Act, whereas that of the respondent found its support in subsection 12(4). After reproducing both subsections, the Umpire opined that subsection 12(4) clearly supported the respondent’s position that the maximum number of weeks of parental benefits allowable was 35 weeks, whether one or more children were born of a single pregnancy. In so concluding, the Umpire stated that he could not agree with the applicant’s submission that it was implicit in subsection 12(4) that its purpose was to limit to 35 weeks the benefits payable to a claimant and that, hence, it did not constitute a cap on the benefits payable, irrespective of the number of claimants. In his view, the interpretation proposed by the applicant, which the Board had accepted, would require him to rewrite subsection 12(4) by adding the words “to a claimant” so that the introductory words of the subsection would read as follows: “The maximum number of weeks for which benefits may be paid to a claimant”.
[14] As an additional reason for being unable to agree with the applicant’s interpretation, the Umpire indicated that such an interpretation would also allow the parents of a single child to each take 35 weeks of parental leave. Thus, in the Umpire’s view, “The 35-week maximum clearly intended to apply to a single child would be eliminated given that subsection 12(4) would apply ‘to a claimant’, i.e. to each claimant individually. Thus, each parent of a single child would be entitled to 35 weeks.” (Umpire’s decision, page 8).
[15] In the Umpire’s view, the Act could only be read as saying that each pregnancy gave rise to 35 weeks of parental benefits. The words “for the care of one or more new-born or adopted children as a result of a single pregnancy or placement”, found in subsection 12(4), did not leave any doubt on the issue. The Umpire’s reasoning on this point appears at page 9 of his decision, where he states:
Contrary to the respondent’s position, what the Act really says is that every pregnancy is “worth” 35 weeks. The words “one or more new-born or adopted children as a result of a single pregnancy” (emphasis added) make this clear. If paragraph 12(4)(b) was intended to simply limit the benefits payable for each child to 35 weeks, it would read “for the care of a new-born or adopted child is 35.” While the pros and cons of the policy choice to grant the same amount of benefits to parents of “one or more” children may be debated, this is a debate properly left to Parliament. As a matter of statutory interpretation, the provisions of the Act are clear, and this cannot be changed by arguments relating to the additional burdens that may face the parents of twins.
[16] The Umpire then stated his disagreement with the applicant’s submission that subsection 12(4) was there to make clear that the 35 weeks of parental care were available for every new pregnancy and not only once in a claimant’s life. Rather, in his opinion, the limitation of 35 weeks of parental care made available by subsection 12(3) was available for each benefit period and, thus, available for a subsequent pregnancy upon establishment of a new benefit period.
[17] The Umpire concluded that part of his decision, at page 12, by stating that the applicant was not entitled to receive parental benefits for the children born in April 2009 because his spouse had applied for 35 weeks of parental benefits, which application the Commission had approved, and that the applicant had consented to her receiving these benefits. Consequently, in the Umpire’s view, the Board had wrongly interpreted the relevant provisions of the Act and its decision had to be set aside.
[18] The Umpire then turned to the question of whether the Board had jurisdiction to deal with the applicant’s Charter arguments. In his view, the matter had already been settled by the Supreme Court of Canada in Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission), [1991] 2 S.C.R. 22 (“Tétreault-Gadoury”), where the Court held that the Umpire and not the Board had jurisdiction to determine whether sections of the Unemployment Insurance Act, 1971, infringed upon the Charter and that he was bound to follow that decision. Further, he rejected the applicant’s submission that the Supreme Court had reversed Tétreault-Gadoury in its recent decision of R. v. Conway, [2010] 1 S.C.R. 765 (“Conway”). He expressed his view as follows at page 17 of his decision:
Further, given that the Supreme Court in R. v. Conway expressly referred to its previous decision in Tétreault-Gadoury, had it intended to reverse its finding there, it would have done so more clearly, even though the Act was not at issue in Conway. It did not, instead choosing to refer to the consolidation and merger of the existing law; in my view, [sic] is further evidence that the finding in Tétreault-Gadoury was not reversed. Moreover, the exercise in discerning legislative intent undertaken in Tétreault-Gadoury is not implicitly overruled by the principles articulated in Conway. There is nothing inconsistent between the Board not having jurisdiction to decide questions of law and the institutional inquiry into Charter jurisdiction provided for in Conway.
[19] The Umpire then turned to the applicant’s Charter arguments and, more particularly, that subsection 2(1) and sections 7, 8, 12 and 23 of the Act infringed subsection 15(1) of the Charter.
[20] First, the Umpire reviewed the Supreme Court’s decisions in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (“Andrews”), Law v. Canada, [1999] 1 S.C.R. 497 (“Law”), and R. v. Kapp, [2008] 2 S.C.R. 483 (“Kapp”). More particularly, he drew attention to the Supreme Court’s decision in Kapp, where the Court set out the applicable test for section 15 inquiries: i.e., whether the law created a distinction based on an enumerated or analogous ground, and whether the distinction created a disadvantage by perpetuating prejudice or stereotyping.
[21] The Umpire then discussed the first part of the Kapp test. His examination of the relevant facts in the light of the Supreme Court’s decisions in Law, Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, Andrews, Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, Miron v. Trudel, [1999] 2 S.C.R. 14, and Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396 (“Withler”), led him to conclude that “[b]eing the parent of twins is an immutable personal characteristic; this appears to be sufficient to establish this status as an analogous ground of discrimination” (Umpire’s decision, page 24).
[22] He then turned his attention to whether a distinction had been made on the basis of the applicant’s immutable personal characteristic. He answered that question by concluding that the scheme of the Act drew a distinction between the parents of twins and other parents. He reasoned as follows at pages 29 and 30:
Here, by assigning benefits based on “a single pregnancy”, the scheme fails to take into account the true characteristics of the parents of twins because their “single pregnancy” results in double the number of children without any increase in benefits. This, in effect, is a distinction.
[23] He then addressed the second part of the Kapp test, and asked himself whether the distinction created a disadvantage by perpetuating prejudice or stereotyping. The Umpire concluded that it did not.
[24] In reaching that conclusion, the Umpire analysed the four contextual factors which the Supreme Court in Law and Kapp set forth as aids to determine whether the distinction created a disadvantage which perpetuated prejudice or stereotyping, namely: (a) pre-existing disadvantage of the claimant; (b) the needs, capacities and circumstances of the claimant and other groups; (c) whether the benefit has an ameliorative effect for a more disadvantaged group; and (d) the nature of the interest affected.
[25] With regard to the first contextual factor, the pre-existing disadvantage of the claimant, the applicant argued that there was strong evidence that treating the birth of twins and the birth of a single child identically for the purposes of parental benefits perpetuated a distinction and disadvantage. The Umpire disagreed with this submission. In his view, although parental benefits constituted a recognition that children require a period of care following their birth, the purpose of the Act was to provide temporary partial income replacement to a claimant when there was an interruption of earnings due to the birth or placement of a child, adding that what was insured were the earnings of a claimant, and that it was the parents who received the benefits, not the child or children.
[26] The Umpire noted that the scheme of the Act did not consider the burden or difficulty of a particular birth, in that it allowed a claimant a number of weeks of benefits, irrespective of “the amount of care a child or children will require” (Umpire’s decision, page 32). In other words, the Umpire was satisfied that the Act sought to address the need felt by parents to stay at home with a child or children after the birth by providing them with benefits to compensate an interruption of earnings while they cared for their children. At page 32 of his decision, the Umpire stated:
There is no evidence that parents of twins are subject to unfair treatment in society by virtue of the fact that they are parents of twins or that they are not given equal concern, consideration or respect. The fact that caring for twins may involve more work than caring for a single newborn does not prove historical disadvantage that perpetuates prejudice and stereotyping. There is certainly no evidence, in the context of the Act, that parents of twins have experienced historical disadvantage, stereotyping, vulnerability or prejudice caused by their being parents of twins.
[27] The Umpire then turned to the second Kapp factor, i.e., the correspondence between the grounds and the claimant’s actual needs, capacity or circumstances. First, he stated that the main issue which had to be determined was whether the Act took into account the particular situation of those affected and, if it did, then it was less likely to rest on a stereotype.
[28] In his discussion, the Umpire examined subsections 23(4) and 23(5) of the Act, and noted that there was sufficient flexibility in the Act to address the needs and circumstances of most claimants. In particular, he pointed to the fact that under subsection 23(4), parents could divide the weeks of parental benefits, as long as the 35-weeks per single pregnancy were not exceeded. The Umpire added that, similarly to the situation in Canada (Attorney General) v. Lesiuk, [2003] 2 F.C. 677, leave to appeal to the Supreme Court of Canada dismissed, 2003 SCCA 94, the matter before him was not one where an entire group or a significant portion of a group had been excluded from benefits, but rather, “that some claimants should receive more benefits than others by virtue of the fact that they are parents of twins” (Umpire’s decision, page 34).
[29] In the Umpire’s view, considering the various circumstances that could arise in different families, it was not possible to devise a system of parental benefits whereby the needs of every family would be met. In his view, however, “[t]he flexibility inherent in the Act does accommodate, to some extent, the needs of parents of children who impose a relatively greater burden than other children, even though the scheme is not precisely attuned to Mr. Martin’s situation” (Umpire’s decision, page 34).
[30] As a result, the Umpire was of the view that the second factor was neutral in the circumstances.
[31] With regard to the third Kapp factor, i.e., the ameliorative purpose or effects of the law or program, the Umpire was of the view that that factor was not relevant since the crux of the applicant’s submission was that his group, parents of twins, was disadvantaged relative to others, and that there was “no other more relatively disadvantaged group that the Act targets” (Umpire’s decision, page 35).
[32] Finally, the Umpire turned to the nature of the interest affected, the last contextual factor, and referred to the Supreme Court’s decision in Granovsky v. Canada (Minister of Employment and Immigration, [2001] 1 S.C.R. 703 (“Granovsky”), where the Court indicated that the real question was not whether a claimant had been deprived of a financial benefit, but whether the deprivation promoted the view that persons with temporary disabilities are ‘less capable, or less worthy of recognition or value as human beings or, as members of Canadian society, equally deserving of concern, respect and consideration (Granovsky, paragraph 58).
[33] This led the Umpire to state that the only interest affected in the present matter was of an economic nature, adding that the applicant had not succeeded in showing that the denial of benefits “has affected his access to fundamental institutions or a basic aspect of his full membership in Canadian society” (Umpire’s decision, page 36). Consequently, the applicant’s economic interests did not result in discrimination. The Umpire’s rationale appears at page 36 of his decision, where he states:
The real issue in this case is the fact that the Act does not entitle Mr. Martin and his spouse to receive twice as many weeks of parental benefits as the parents of a single child. Contrary to what he submits, he was not excluded from the parental benefits scheme. Rather, he simply chose not to avail himself of the parental benefits so that his spouse could receive the maximum amount of benefits available. I find that the denial of an additional 35 weeks of parental benefits does not result in a denial of access to a fundamental social institution nor does it constitute a complete non-recognition of a group.
[34] In considering the above four factors, the Umpire pointed out that he had kept in mind the Supreme Court’s admonition in Kapp that the contextual factors were not to be rigidly applied as they were simply aids useful in determining whether a distinction resulted in discrimination. Whether one approached the matter from the perspective of a demeaning of dignity, as in Law, or whether one approached the issue, as in Andrews and Kapp, by determining whether the distinction created a disadvantage through the perpetuation of prejudice or stereotyping, there could be no doubt, in the Umpire’s opinion, “… that discrimination necessarily entails some offence to the way a group is treated in society. Courts must determine whether a distinction impairs the substantive equality section 15 protects” (Umpire’s decision, page. 37).
[35] The Umpire then stated his view that the applicant had not shown that the Act and the scheme contained therein offended the Charter’s promise of substantive equality. He explained his position as follows, at pages 37 and 38:
The employment insurance scheme does not fail to recognize the concern, respect and consideration due to the parents of twins as members of Canadian society. Although Mr. Martin has presented evidence of the burdens occasioned by the birth of his children, the fact that the Act does not grant his family double benefits falls short of demonstrating that the scheme suggests he is less worthy of respect. The importance of context, recognized as a core part of the section 15 analysis at para. 43 of Withler, cannot be overstated here. Mr. Martin has failed to demonstrate that the parents of twins have faced or do face historical disadvantage, prejudice or stereotyping in Canadian society. Looking to other factors, the financial interest affected here does not impair Mr. Martin’s full participation in all fundamental aspects of Canadian society, and the benefits to which the Martin-Critchley family are entitled, although not precisely corresponding to their enhanced needs as parents of twins, do include them to a significant extent in the employment benefit scheme. From the perspective of a reasonable person in Mr. Martin’s position, and considering all of the factors discussed above, it simply cannot be said that the employment insurance scheme perpetuates prejudice and stereotyping.
[36] The Umpire then went on to emphasize that not every distinction in treatment at law amounted to a violation of section 15. He reasoned as follows at page 38 of his decision:
… The classifying of individuals and groups, the implementation of different provisions respecting such groups, and the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society. The Supreme Court and the Federal Court of Appeal have held that complex social benefits programs, such as the employment insurance program, often make distinctions in order to deliver these programs properly, and that Parliament must be accorded some flexibility in the extension of social benefits. It is entirely legitimate for the government to make choices in the allocation of benefits and it should be permitted a degree of latitude in so doing, as it is an exercise which is almost bound to seem arbitrary to those falling on the wrong side of the line (citations omitted).
[37] Finally, relying on the Supreme Court’s decision in Withler, the Umpire pointed out that policy considerations could be a relevant factor in regard to the second part of the Kapp test, noting that the parental benefits allowed by the Act were not needs-based, in that the benefits were not the mirror reflection of the burden or difficulties imposed upon parents by a child’s birth. The Umpire then added that the scheme put forward by Parliament was subject to the usual financial constraints faced by all government programs, and that the fact that the Act did not grant greater benefits to the parents of twins did not amount to a failure by Parliament to recognize the additional burden imposed upon parents of twins or triplets, since the Act was blind or neutral to the different burdens imposed by the birth of a child or children.
[38] The Umpire concluded his reasoning as follows at page 40:
… The policy of the Act is to grant a set amount of parental leave benefits after birth regardless of need or burden imposed. As such, it cannot reasonably be construed as making any suggestion as to the concern, respect and consideration that the parents of twins deserve.
Relevant Legislation
[39] The relevant provisions of the Act and of the Employment Insurance Regulations, SOR/96-352 (“Regulations”), read as follows:
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.
(4.01) If a claim is made under this Part in respect of a child or children referred to in paragraph (4)(b) and a claim is made under section 152.05 in respect of the same child or children, the maximum number of weeks of benefits payable under this Act in respect of the child or children is 35.
…
(8) For the purposes of this section, the placement with a major attachment claimant, at the same or substantially the same time, of two or more children for the purpose of adoption is a single placement of a child or children for the purpose of adoption.
…
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.
(2) Subject to section 12, benefits under this section are payable for each week of unemployment in the period
(a) that begins with the week in which the child or children of the claimant are born or the child or children are actually placed with the claimant for the purpose of adoption; and
(b) that ends 52 weeks after the week in which the child or children of the claimant are born or the child or children are actually placed with the claimant for the purpose of adoption.
…
(4) If two major attachment claimants are caring for a child referred to in subsection (1), or one major attachment claimant and an individual who claims benefits under section 152.05 are both caring for a child referred to in that subsection, weeks of benefits payable under this section, under section 152.05 or under both those sections, up to a maximum of 35 weeks, may be divided between them.
(4.1) For greater certainty, if, in respect of the same child, a major attachment claimant makes a claim for benefits under this section and another person makes a claim for benefits under section 152.05, the total number of weeks of benefits payable under this section and section 152.05 that may be divided between them may not exceed 35 weeks.
…
152.05 (1) Subject to this Part, benefits are payable to a self-employed person to care for one or more new-born children of the person or one or more children placed with the person for the purpose of adoption under the laws governing adoption in the province in which the person resides.
…
(15) If a self-employed person makes a claim under this Part and another person makes a claim under section 22 or 23 in respect of the same child or children and one of them has served or elected to serve their waiting period, then
(a) if the self-employed person is not the one who served or elected to serve the waiting period, the self-employed person is not required to serve a waiting period; or
(b) if the person making the claim under section 22 or 23 is not the one who served or elected to serve the waiting period, the person may have his or her waiting period deferred in accordance with section 23.
…
152.09 (1) If an individual qualifies for benefits under this Part as a self-employed person and for benefits under Part I as an insured person, the individual may receive benefits under one Part only and, to do so, the individual must, in the prescribed manner, at the time of making an initial claim for benefits, elect under which Part benefits are to be paid.
(2) The election is binding on the individual in respect of the initial claim for all benefits payable, for any of the following reasons, during the benefit period established in relation to the initial claim:
(a) pregnancy;
(b) caring for one or more new-born children of the self-employed person, or one or more children placed with the self-employed person for the purpose of adoption;
(c) a prescribed illness, injury or quarantine; and
(d) providing care or support to one or more family members.
The Regulations
76.21 (1) Subsection (2) applies in respect of two persons who are caring for the same child or children and who do not reside in the same province at the time the first one of them makes an application under section 22 or 23 of the Act or an application for provincial benefits.
(2) Subject to subsection (3), where one of the two persons referred to in subsection (1) has applied for and is entitled to receive benefits under section 23 of the Act (referred to in this section as “the claimant”) and the other person has applied for and is entitled to receive provincial benefits (referred to in this section as “the provincial applicant”), unless they have entered into an agreement as to the number of weeks of such benefits they will each respectively apply for or there is a court order respecting the sharing of those weeks of benefits,
(a) if the number of weeks of benefits that the claimant would otherwise be entitled to receive under section 23 of the Act is an even number, the number of weeks of benefits payable to the claimant is half that number; and
(b) if that number is an odd number,
(i) where the claimant made the earlier application, one week of those benefits plus half of the remaining weeks of benefits is payable to the claimant, and
(ii) where the provincial applicant made the earlier application, half the number of weeks of benefits remaining, after deducting one week, are payable to the claimant.
(3) The maximum number of weeks of benefits that may be paid to the claimant under section 23 of the Act shall not be greater than the maximum number of weeks for which benefits may be paid under paragraph 12(3)(b) of the Act, less the number of weeks of provincial benefits that are paid to the provincial applicant, taking into account any weeks of provincial benefits that are paid at the accelerated rate referred to in subsection 76.19(2), if applicable.
La Loi
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.
(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.
(4.01) Si une demande de prestations est présentée au titre de la présente partie relativement à un ou plusieurs enfants visés au paragraphe (4) et une demande de prestations est présentée au titre de l’article 152.05 relativement au même enfant ou aux mêmes enfants, les prestations prévues par la présente loi relativement à celui-ci ou à ceux-ci ne peuvent être versées pendant plus de trente-cinq semaines.
[…]
(8) Pour l’application du présent article, le placement auprès d’un prestataire de la première catégorie, au même moment ou presque au même moment, de deux enfants ou plus en vue de leur adoption est considéré comme un seul placement d’un ou plusieurs enfants en vue de leur adoption.
[…]
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.
(2) Sous réserve de l’article 12, les prestations visées au présent article sont payables pour chaque semaine de chômage comprise dans la période qui :
a) commence la semaine de la naissance de l’enfant ou des enfants du prestataire ou celle au cours de laquelle le ou les enfants sont réellement placés chez le prestataire en vue de leur adoption;
b) se termine cinquante-deux semaines après la semaine de la naissance de l’enfant ou des enfants du prestataire ou celle au cours de laquelle le ou les enfants sont ainsi placés.
[…]
(4) Si deux prestataires de la première catégorie prennent soin d’un enfant visé au paragraphe (1) — ou si un prestataire de la première catégorie et un particulier qui présente une demande de prestations au titre de l’article 152.05 prennent tous deux soin d’un enfant visé à ce paragraphe —, les semaines de prestations à payer en vertu du présent article, de l’article 152.05 ou de ces deux articles peuvent être partagées entre eux, jusqu’à concurrence d’un maximum de trente-cinq semaines.
(4.1) Il est entendu que dans le cas où un prestataire de la première catégorie présente une demande de prestations au titre du présent article et où un particulier présente une demande de prestations au titre de l’article 152.05 relativement au même enfant, le nombre total de semaines de prestations à payer au titre du présent article et de l’article 152.05 qui peuvent être partagées entre eux ne peut dépasser trente-cinq semaines.
[…]
152.05 (1) Sous réserve de la présente partie, des prestations doivent être payées à un travailleur indépendant 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.
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(15) Si un travailleur indépendant présente une demande de prestations au titre de la présente partie et qu’une autre personne présente une demande de prestations au titre des articles 22 ou 23 relativement au même enfant ou aux mêmes enfants et que l’un d’eux a purgé son délai de carence ou a choisi de le purger, les règles suivantes s’appliquent :
a) dans le cas où le travailleur indépendant ne l’a pas purgé ou n’a pas choisi de le purger, il n’est pas tenu de le faire;
b) dans le cas où la personne qui présente une demande de prestations au titre des articles 22 ou 23 ne l’a pas purgé ou n’a pas choisi de le purger, elle peut faire reporter cette obligation en conformité avec l’article 23.
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152.09 (1) S’il remplit les conditions requises pour recevoir des prestations à la fois à titre de travailleur indépendant au titre de la présente partie et d’assuré au titre de la partie I, un particulier ne peut les recevoir qu’au titre d’une seule de ces parties et doit choisir, selon les modalités réglementaires, au moment de présenter sa demande initiale, la partie aux termes de laquelle les prestations seront versées.
(2) Le choix lie le particulier à l’égard de la demande initiale pour toutes les prestations qui doivent lui être payées, pour les raisons ci-après, au cours de la période de prestations établie à l’égard de cette demande :
a) grossesse;
b) soins à donner par le travailleur indépendant à son ou ses nouveau-nés ou à un ou plusieurs enfants placés chez celui-ci en vue de leur adoption;
c) maladie, blessure ou mise en quarantaine prévue par règlement;
d) soins ou soutien à donner à un ou plusieurs membres de sa famille.
Le Règlement
76.21 (1) Le paragraphe (2) s’applique aux personnes qui prennent soin du même enfant ou des mêmes enfants, mais qui ne résident pas dans la même province au moment où la première d’entre elles fait une demande de prestations en vertu des articles 22 ou 23 de la Loi ou une demande de prestations provinciales.
(2) Sous réserve du paragraphe (3), dans le cas où l’une des personnes visées au paragraphe (1) a demandé et est en droit de recevoir des prestations en vertu de l’article 23 de la Loi (ci-après appelée « prestataire ») et que l’autre personne a demandé et est en droit de recevoir des prestations provinciales (ci-après appelée « demandeur provincial »), à moins qu’il n’existe une entente sur le nombre de semaines de telles prestations que l’une et l’autre demanderont respectivement ou qu’il n’existe une ordonnance d’un tribunal sur le partage de ces semaines de prestations, le nombre de semaines de prestations à payer est établi de la façon suivante :
a) dans le cas où le nombre de semaines de prestations que le prestataire serait par ailleurs en droit de recevoir en vertu de l’article 23 de la Loi est un nombre pair, le prestataire a droit à la moitié des semaines de prestations;
b) dans le cas où ce nombre est impair :
(i) si le pr