UNEMPLOYMENT INSURANCE |
Pérusse v. M.N.R.
A-722-97
Marceau, Desjardins (dissenting) and Décary J.J.A.
10/3/00
33 pp.
Application for judicial review from Tax Court of Canada judge's decision dismissing appeal from two determinations by MNR that claimant's employment in law firm of de facto spouse from 1992 to 1996 not insurable--Applicant claiming Unemployment Insurance Act, s. 3(2)(c) (which, except when Minister satisfied exception well-founded, excludes employment when employer and employee not dealing at arm's length) unconstitutional as violating right to equality under Charter, s. 15 and that determinations not consistent with facts--Application allowed (Desjardins J.A. dissenting)--Marceau J.A.: None of conditions for application of Charter, s. 15 laid down by the Supreme Court in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, present in case at bar--Differential treatment in procedure not based on personal characteristic of claimants in question; it does not limit access by anyone to benefits of Act since any contract regarded as genuine will be covered; and finally dignity of individual not affected--Impugned provision result of requirement of caution in accepting as genuine and proper contract of employment concluded between two already related persons--Investigation by T.C.C. judge did not meet requirements of justice: did not fulfil his role to investigate all facts with parties and witnesses called to testify under oath for first time and to consider whether Minister's conclusion still seemed reasonable--Décary J.A.: Although presumption of exception which a de facto spouse must rebut under Unemployment Insurance Act, s. 3(2)(c)(ii) before she can qualify for unemployment insurance benefits meets first two criteria for application of Charter, s. 15 according to Law (Act establishing formal distinction between claimant and others based on personal characteristic and claimant subject of different treatment based on listed or similar grounds), it does not meet third criterion (differential treatment does not demean claimant's human dignity)--However, no evidence on application of Charter, s. 15 nor on justification allowed by s. 1 before T.C.C. or in this Court--Desjardins J.A. (dissenting): Unemployment Insurance Act, s. 3(2)(c) read together with Income Tax Act, s. 251(1)(a) and (2)(a) violating Charter, s. 15--Although issue turning only on presumption, which creates burden of proof, presumption subject to provisions of Charter--Presumption based on personal characteristic of applicants, namely blood, marriage or adoption--Marital status analogous ground of discrimination within meaning of Charter, s. 15--And imposition of additional burden of proof reflecting existence of stereotype--Impugned provision in case at bar also demeaning human dignity--Application should be allowed and T.C.C. should proceed with a re-hearing dealing with Charter, s. 1, on basis that s. 3(2)(c) violating Charter, s. 15--Unemployment Insurance Act, R.S.C., 1985, c. U-1, s. 3(2)(c)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15--Income Tax Act, R.S.C., 1985, (5th Supp.), c. 1, s. 251(1)(a), (2)(a).