CUB 25001
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
September 28, 1995
Docket:
A-479-94
Umpire's Decision:
CUB 25001
CORAM :
MARCEAU J.A.
DÉCARY J.A.
ROBERTSON J.A.
BETWEEN :
ATTORNEY GENERAL OF CANADA,
applicant,
-and-
respondent.
REASONS FOR JUDGMENT
MARCEAU J.A.:
This application for judicial review of a decision of an Umpire acting pursuant to the provisions of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, is concerned with the interpretation of section 14 and its correlation with section 28, two key provisions of the Act which provide as follows:
14. A claimant is not entitled to be paid benefit for any working day in a benefit period for which the claimant fails to prove that the claimant was either
(a) capable of and available for work and unable to obtain suitable employment on that day, or
(b) incapable of work by reason of prescribed illness, injury or quarantine on that day, and that he would be otherwise available for work.
28.(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.
(2) For the purposes of this section, loss of employment within the meaning of subsection (1) does not include loss of employment on account of membership in, or lawful activity connected with, any association, organization or union of workers.
(3) In this section, "employment" refers to the claimant's last employment immediately prior to the time his claim for benefit is made unless otherwise prescribed by the regulations.
(4) For the purposes of this section, "just cause" for voluntarily leaving an employment exists where, having regard to all the circumstances, including any of the following circumstances, the claimant had no reasonable alternative to leaving the employment:
[ ... ]
(e) obligation to care for a child or a member of the immediate family;
[ ... ]
The pertinent facts that gave rise to the litigation are quite simple. The respondent voluntarily left her position as an electronics assembler with Squirrel Companies of Canada on September 14, 1991 in order to care for her daughter whose condition requires special attention. The respondent made an initial application for benefits, and a benefit period was established. Nothing, however, that on her weekly report cards the respondent was understandably showing that she was not available for work, the Commission advised her, on November 7, 1991, that she was not entitled to receive benefits from September 15, 1991 as she had not proven her availability for work during those weeks as required by section 14 of the Act. The respondent objected, providing additional information, and in so doing demonstrated that the situation had changed and that she was now in a position to return to work. The Commission advised her that its ruling of November 7 stood but her disentitlement was terminated effective November 13, 1991.
The Board of Referees, in a majority decision, allowed the respondent's appeal against the ruling of disentitlement for the period preceding November 13, 1991. On reading the significant parts of the reasons of both the majority and the minority, one can immediately identify the issue:
MAJORITY DECISION:
[...]
Findings:
[...] The majority of the Board realizes that under Section 14(a), the claimant must prove availability but under Section 28(4)(e) just cause for voluntarily leaving an employment exists, having regard to all the circumstances the claimant has no reasonable alternative to immediately leaving employment obligation to care for a child.
Decision:
In accordance with Section 28(4)(e) voluntarily leaving is allowed to care for a child, it follows that benefits should be allowed.
MINORITY DECISION:
[...]
Conclusion:
[...] the Unemployment Insurance Act is clear that in order to be entitled to benefits a claimant must be available for work and unable to obtain suitable employment on that day. While this member of the Board understands the problems faced by the claimant, the Unemployment Insurance Act as it now stands does not provide payment of benefits to cover staying at home to care for a sick child. This can only be corrected or changed by legislation and therefore this Board member finds the Commission's decision was correct in law.[...]"
The Commission immediately appealed to the Umpire. On the basis of lengthy reasons, the Umpire upheld the majority decision of the Board. The Umpire first noted an ambiguity in paragraph 14(b), according to which a claimant is entitled to benefits if he or she is "incapable of work by reason of prescribed illness, injury or quarantine", in that it is not specified therein whose illness is referred to, the illness of the claimant exclusively or any illness that renders the claimant incapable of working. He then referred to various principles of statutory interpretation, and to the significance of the purpose of the legislation and its context. In particular, he considered section 28 and the very recent addition by Parliament of paragraph 28(4)(e) wherein it was recognized that unavailability because of child care responsibilities is "just cause" for leaving employment. He concluded that, even if this Court had already held that the illness referred to in paragraph 14(b) was that of the claimant, this interpretation should be revisited to give effect to the "altered and ever-changing societal context". Consequently, the respondent should not have been "disqualified" (sic) from benefits while home with her child, since she fell within the exception in paragraph 14(b) of being incapable of work by reason of a prescribed illness, namely that of her child.
The Umpire then addressed the alternative argument advanced by counsel on behalf of the respondent to the effect that section 14 would violate subsection 15(1) of the Canadian Charter of Rights and Freedoms if it were interpreted as disentitling claimants unemployed due to an obligation to care for a child. This, according to the argument, would constitute discrimination based on sex, since women are more likely to suffer involuntary unemployment by reason of the illness of a child. The Umpire rejected this argument, primarily on the basis that there is simply no evidence to show that the provisions create a "qualitative disadvantage" for women as opposed to men. He noted, however, that the values enshrined in the Charter lend support to his conclusion on the interpretation of section 14 of the Act.
It is this decision of the Umpire, dismissing the appeal against the majority decision of the Board of Referees, that the Attorney General brought before this Court for judicial review.
* * * * *
I am of the view that this application must succeed.
It is obvious to me, I say it with respect, that the respondent, the majority members of the Board of Referees and the Umpire all have confused eligibility for benefits with just cause for leaving employment. They seem to be operating under the mistaken assumption that benefits are available whenever an employee leaves his or her employment for just cause. Of course, this is not the case. In order to be eligible for benefits, a claimant must be able to show that he or she is eligible for work and unable to obtain suitable employment on that day.
The requirement in section 14 of the Act that a claimant be available for work is completely separate and independent from the disqualification established pursuant to section 28 of the Act. Section 28 operates to disqualify from benefits any claimant who has lost his or her employment through voluntary acts for which no "just cause" can be established. It is a long-standing provision which has never been substantially amended but has been clarified by Parliament by the addition of practical examples of what could constitute "just cause", examples all taken from the experience of time among which was the "obligation to care for a child, or a member of the immediate family". Thus, a person who leaves his or her employment to care for a child is not disqualified from receiving benefits.
The Umpire found a contradiction between the requirement for eligibility in section 14 and the exception from disqualification in paragraph 28(4)(e). It was this perceived contradiction that led him to expand paragraph 14(b) to cover the circumstances of a person unable to work because of the needs of a sick child. This was a false perception. There is nothing contradictory about the existence of these two provisions of the Act. A person who quits his or her job to care for a sick child will not be disqualified, but he or she will not be eligible to start receiving benefits until he or she is available for work. The two provisions function completely independently and do not conflict with each other.
The Umpire's perception of an ambiguity in the Act led him to read paragraph 14(b) so as to include the sickness of one's dependent child. This interpretation conflicts with a plain reading of the provision and with Regulation 47, wherein the "prescribed" illness referred to in paragraph 14(b) is set out. Regulation 47 reads as follows:
47.(1) A claimant who, pursuant to paragraph 14(b) of the Act, alleges that the claimant is incapable of work by reason of illness, injury or quarantine shall at the claimant's own expense provide to the Commission a certificate completed by a medical doctor or other medical professional supplying such information with respect to the nature and probable duration of the illness, injury or quarantine and any other circumstance relating thereto as proves the claimant's incapability to work.
(2) Notwithstanding that a certificate is furnished by a claimant pursuant to subsection (1), the Commission may require a claimant to undergo a medical examination at such time and place as it may reasonably direct for the purpose of determining the nature of the illness, injury or quarantine, the physical and mental condition of the claimant, the probable duration of the incapacity and any other circumstances relating thereto.
(3) A medical examination referred to in subsection (2) shall be made at the expense of the Commission and a claimant who undergoes such an examination shall be paid such reasonable travel allowances and other expenses as are approved by the Commission.
[...]
(6) For the purposes of paragraphs 7(2)(a) and 14(b) and subsection 30(3) of the Act, illness, injury or quarantine is any illness, injury or quarantine that renders a claimant incapable of performing the functions of the claimant's regular or usual employment or of other suitable employment.
Subsection (2) of this Regulation clearly refers to the claimant being required to undergo a medical examination. From this, it is obvious that the illness referred to in Regulation 47 is that of the claimant and no other person.
The Umpire's interpretation of paragraph 14(b) cannot be supported on any basis. Paragraph 14(b) should only come into play where a claimant's own illness renders him or her incapable of work. Thus, in the case at bar, the Commission was correct in denying the respondent benefits from September 15 until November 14 since, during that period, she, by her own admission, was not available for work.
As indicated above, counsel for the respondent raised before the Umpire, in addition to the statutory argument, a constitutional argument which was rejected. Counsel reiterated and even expanded this argument before us. In his submission, if section 14 of the Act is to be interpreted as denying benefits to a person incapable of working because of a sick child, the Act discriminates in two respects: first, indirectly, by adversely affecting women more than men; and second, directly, by denying to those who are incapable of working because of the sickness of another a benefit granted to those who are incapable of working because of their own illness.
This constitutional argument, in my judgment, cannot succeed. It is clear to me that both allegations of discrimination are premised on the assumption that the Act is aimed at providing benefits to all those who are unemployed or unable to work. Indeed, only on that basis could one speak of direct discrimination when those prevented from working because their child is sick are treated differently from those prevented from working because they themselves are sick; and only on that basis could we speak of indirect discrimination against women when benefits are made unavailable to those prevented from working by the needs of a child, such a denial affecting women more than men. But the assumption is wrong. This is a law whose basic purpose, very simply put, is to help those members of the work force who lose their employment and are unable to find immediately another one in replacement. Unemployment insurance is not universally available.
That there should be better economic support for people raising children, particularly when those children have special needs, is a proposition most people would have no hesitation agreeing with and no doubt this lack of adequate support creates a greater hardship on women than men since women have the primary role in child care. Nevertheless, it is beyond the jurisdiction of the Umpire or of any Court to fashion social welfare legislation out of existing Acts of Parliament which are not addressed to solving this problem. The existence of the Charter does not mandate this type of intrusion into the legislative domain.
My overall conclusion, therefore, is that the Umpire erred in his interpretation of section 14 of the Act and that that section does not contravene section 15(1) of the Charter by reason of the fact that it has the effect of denying benefits to those who are unavailable for work because they must care for a sick child.
I would allow the application and send the matter back to the Chief Umpire or his designate for redetermination on the basis that the majority decision of the Board of Referees cannot be allowed to stand and the decision of the Commission must be restored.
"Louis Marceau"
J.A.
"I agree.
Robert Décary, J.A."
"I agree.
JJ.T. Robertson, J.A."
* Further to Justice Marin's direction of October 1994, the claimant's name has been removed.
2011-01-10