The maternity provisions of the Employment Insurance Act (subsections 12(3) and (4) and subsection 22(1)), which grant biological mothers 15 weeks of benefits as a result of pregnancy do not contravene the equality guarantees of section 15 of the Charter. It is not discriminatory for governments to treat biological mothers differently from other parents, including adoptive parents. In order to cope with the physiological changes that occur during childbearing, biological mothers require a flexible period of leave that may be used during pregnancy, labour, birth and the postpartum period. This is not to deny that adoptive mothers also face profound challenges in adopting and caring for their children but they are not the same problems facing biological mothers.
Schafer v. Canada (A.G.) (1997), 149 D.L.R. (4th) 705 (Ont. C.A.); leave to appeal to Supreme Court of Canada denied on January 29, 1998
Tomasson v. Canada (A.G.), 2007 FCA 265 A-346-05
The limit on the number of weeks for receipt of special benefits contained in subsection 12(6) of the Employment Insurance Act does not discriminate against pregnant women and is not therefore, a violation of the equality provisions in section 15 of the Canadian Charter of Rights and Freedoms. All recipients of special benefits are subject to the limitation. Neither are the provisions discriminatory pursuant to the Charter. In the context of complex statutory schemes such as employment insurance where the total cost of the program is a relevant consideration in its design, Parliament should be given a degree of latitude in determining eligibility, an exercise that is almost bound to seem arbitrary to those falling on the wrong side of the line.
Sollbach v. Canada, [1999] F.C.J. No. 1912 (F.C.A.)
Canada (A.G.) v. Brown, [2001] F.C.J. No. 1882 (F.C.A.)
Nishri v. The Queen, [2001] F.C.J. No. 563 (F.C.A.)
Miller v. Canada (A.G.), [2002] F.C.J. No. 1375 (F.C.A.)
The denial of pregnancy benefits to a claimant during the time she is in receipt of severance pay is not discrimination under section 15 of the Charter. Since receiving wages operates as a general bar to, or reduction of, all unemployment insurance benefits, it cannot be said that the provisions rendering a female claimant ineligible are discriminatory on the ground of sex. A male claimant in receipt of severance pay during weeks when he was not available for work by reason of illness or injury would be equally ineligible for benefits. Nor could it be argued that, if his illness was one to which only men are prone, the refusal of benefits would be discriminatory.
Krock v. Canada (A.G.), [2001] F.C.J. No. 896 (F.C.A.); leave to appeal to Supreme Court of Canada dismissed February 21, 2002
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2009-04-29