Nishri v. Canada
A-216-96
Strayer J.A.
9/12/97
14 pp.
Child-care benefits-Unemployment Insurance Act, s. 20 amended in October 1990, providing for child-care benefits for natural parents if child born after November 18, 1990-Applicant's child born two months before that date-Application for judicial review of Umpire's decision denying benefits to applicant despite Charter, s. 15 argument-Umpire repeated statement in Canada (Attorney General) v. Faltermeier (1995), 128 D.L.R. (4th) 481 (F.C.A.) that beyond Umpire's jurisdiction to fashion social welfare legislation out of existing Acts of Parliament not addressed to solving problem-Question examined: whether Umpire had already dealt with constitutional issue and if not, whether matter should be referred back to Umpire-Applicant arguing discrimination due to pregnancy, same as discrimination due to sex-Respondent arguing provision introducing benefits not previously available not precluded by Charter-Application allowed-Umpire failed to deal with constitutional issue-Misinterpreted Faltermeier decision-Faltermeier not pronouncement constitutional issues should not be addressed by Umpires but only by courts of appeal-Rather, FCA therein simply found Act, s. 14 did not violate Charter, s. 15-Since Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, clear that Umpire has power to determine constitutional issues as part of duty to determine questions of law-While Court could proceed now to determine such issues, preferable that matter be referred back to Umpire-No problem as to availability of remedy should applicant succeed before Umpire on merits-Umpire could make determination Board relied on unconstitutional law in upholding refusal of benefits by Commission which had been based on clear language of statute, and could render decision Board should have made to be consistent with constitutional law-In reaching conclusion benefits should be payable to claimant, Umpire would be making determination as to how Act must be applied to be consistent with Constitution-Well established by S.C.C. administrative tribunals required to decide legal issues can decide constitutional issues-In Schachter v. Canada, [1992] 2 S.C.R. 679, case involving complaint Unemployment Insurance Act under-inclusive, S.C.C. explained Constitution Act, 1982, s. 52(1) appropriate basis for action where clear words of statute create result attacked as unconstitutional, whereas s. 24(1) basis for remedial action where admittedly valid statute being applied in way to produce unconstitutional result-Complaint here of former type-Remains for parties to define more clearly constitutional issues Umpire must address-Also remains for Umpire to determine issues and, if necessary, to consider techiques to apply Act in constitutional manner: "severance" (or "reading down", treatment of particular section as being invalid and nullity), or "reading in" (applying statute as if contained provision which would be constitutionally required to make Act valid)-Another option that of constitutional "exemption", whereby court accepts general validity of statute but exempts certain person, group, or situation, from its application-Need for notices of constitutional question to attorneys general and clear definition of constitutional issues before matter can be dealt with by Umpire-Unemployment Insurance Act, R.S.C., 1985, c. U-1, s. 20 (as am. by S.C. 1990, c. 40, s. 14)-Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52-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. 15, 24.