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A-19-82
Attorney General of Canada (Applicant)
v.
Teresa Stevenson (Respondent)
Court of Appeal, Thurlow C.J., Le Damn J. and Clement D.J.-Toronto, January 17; Ottawa, March 7, 1983.
Unemployment insurance - Maternity benefits - Regular benefit period established for respondent on September 13, 1979 - Respondent collecting until commencement of new job on April 29, 1980 - Baby expected May 23, 1980; birth occurring May 25 - Respondent not entitled to benefits for 8 weeks preceding week of expected confinement or for 6 weeks following week of birth - Analysis of Ritchie J. in Bliss still valid - "Proves her pregnancy" in s. 30(1) meaning claims because unemployed and pregnant - Unnecessary to be cap able of and available for work - Respondent having 10 weeks' employment or benefit receipt as per s. 30(1) unlike Bliss Eligibility period under s. 30(2)(a) and (b) not necessarily same as s. 46 period - Eligibility period begins with actual con finement week if woman works until birth - Respondent's eligibility period commencing 8 weeks before expected con finement week - Pre-birth work stint does not extend eligi bility period since end-point fixed by s. 30(2)(b)(ii) - No benefits for particular week in eligibility period unless "one of the first fifteen weeks for which benefits are claimed and payable in her benefit period" - "Her benefit period" refer ring to period defined by ss. 2, 19, 20 - S. 30(2)(b)(ii) referring to same - Respondent having already collected for 15 weeks prior to eligibility period - Decision set aside, matter referred back to Umpire - Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 2 (as am. by S.C. 1976-77, c. 54, s. 26(1),(6)), 16(1)(a), 17, 19 (as am. by S.C. 1976-77, c. 54, s. 32), 20 (as am. by S.C. 1976-77, c. 54, s. 33), 25, 30(1) (as am. by S.C. 1976-77, c. 54, s. 38(1)), (2) (as am. by S.C. 1974-75-76, c. 66, s. 22 and by S.C. 1976-77, c. 54, s. 38(2)), 32 (as am. by S.C. 1976-77, c. 54, s. 40), 46 - Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appendix III, s. 1(b)J - Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
The respondent was employed for 32 weeks, from November 6, 1978, to June 15, 1979, before leaving her job. She then drew unemployment insurance benefits under a ben efit period relating to previous employment, until that period expired. On September 13, 1979, the respondent filed a new claim, and a new benefit period was established for her, on the basis of the 32 weeks of work. With one break of two weeks
during which she was employed, the respondent collected ben efits under this new period until April 29, 1980, on which date she began working at a new job. Her baby was expected on May 23, 1980, and was actually born on May 25. The 8-week period preceding the week of the respondent's expected confine ment thus began on March 23, 1980. When it was discovered that she had collected benefits for several weeks in that 8-week period, she was notified: that "maternity benefits are only paid in the first 15 weeks for which benefits are claimed and payable"; that, prior to March 23, she had already collected benefits for 15 weeks (under the claim filed on September 13, 1979); and that she was therefore ineligible for benefits in the 8-week period beginning March 23, and would have to repay the amounts received in respect of that period. The Umpire overturned the decision of the Board of Referees, which had held that the respondent was not entitled to benefits for the period beginning 8 weeks before the expected date of confine ment and ending 6 weeks after the week in which the baby was born.
Held, the respondent was not entitled to benefits in this period ("the section 46 period"), and the matter is referred back to the Umpire for determination on that basis. The analysis of conditions governing qualification and disentitle- ment made by Ritchie J. in the Bliss case is still valid. If the woman is one "who proves her pregnancy" as per subsection 30(1)—that is, who claims benefits because she is unemployed and pregnant—then she need not be capable of and available for work in order to be entitled to benefits. However, it is still the case that, by virtue of section 46, no benefits may be collected under the Act in respect of the section 46 period, except as provided by section 30. The instant case is distin guishable from Bliss in that the respondent herein did have the 10 weeks of work, or of benefit receipt, required by subsection 30(1). Consequently, this case, unlike Bliss, does not turn on the requirements for qualification contained in subsection (1) of section 30, but rather on the terms of subsection (2), which sets out the period for which benefits are payable to a qualified claimant. This eligibility period is not necessarily the same as the section 46 period. The beginning and end of the eligibility period are determined, prima facie, under paragraphs 30(2)(a) and (b), respectively. Pursuant to paragraph (a), if the woman continues to work until the baby is born, the eligibility period begins in the week of the actual confinement. However, as the respondent in this case was unemployed at the beginning of the 8-week period preceding the week in which her confinement was expected, the alternative rule—subparagraph (a)(i)—gov- erns, so that, other things being equal, the respondent's period of eligibility would have commenced with the first of those 8 weeks. It also follows that the date specified in subparagraph (b)(ii) was earlier than that stated in subparagraph (b)(i), so that the end-point of the eligibility period would be fixed at 14 weeks after the first of those 8 weeks. As a consequence, the stint of work performed by the respondent at her new job shortly before the baby's birth is not relevant. It cannot afford her any extension of the eligibility period. The larger problem arises, though, with regard to the closing lines of subsection
30(2), which state that, even if a particular week falls within the eligibility period, benefits may not be claimed for it unless it "is one of the first fifteen weeks for which benefits are claimed and payable in her benefit period." (Emphasis added.) Arguably, the expression "her benefit period" might refer to the eligibility period determined under paragraphs 30(2)(a) and (b). However, a general definition of "benefit period" is set forth in section 2 and (by reference) sections 19 and 20; and a consideration of the history of subsection 30(2), among other factors, leads to the conclusion that it is the benefit period as defined in these provisions to which the closing lines of subsec tion 30(2), as well as the words of subparagraph 30(2)(b)(ii), refers. Accordingly, in this case "her benefit period" is the benefit period which began on September 13, 1979. By the time the respondent arrived at the 8-week stretch preceding the week in which her confinement was expected, she had already col lected for 15 weeks (and more) of this benefit period. There fore, none of the weeks in the eligibility period circumscribed by paragraphs 30(2)(a) and (b) was one of the "first fifteen weeks" of this benefit period, and none of the weeks is one for which the respondent was entitled to collect under section 30.
CASE JUDICIALLY CONSIDERED
DISTINGUISHED:
Bliss v. The Attorney General of Canada, [1979] 1 S.C.R. 183.
REFERRED TO:
McPherson v. Attorney General of Canada, [1973] F.C. 511 (C.A.).
COUNSEL:
Marlene Thomas for applicant. No one appeared for respondent.
SOLICITOR:
Deputy Attorney General of Canada for applicant.
The following are the reasons for judgment rendered in English by
THURLOW C.J.: This is an application under section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] to review and set aside the decision of an Umpire under the Unemployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48]
which allowed the respondent's appeal from the decision of a Board of Referees. The Board's deci sion had held the respondent not entitled to unem ployment insurance benefit for the period com mencing eight weeks before the week in which her confinement was expected, and ending six weeks after the week in which her baby was born.
The respondent had been employed for a period of some 32 weeks from November 6, 1978, to June 15, 1979, when she left her employment, married and moved to another city to be with her husband. There she sought employment and, in the mean time, drew unemployment insurance benefits under an earlier benefit period until it ran out. On September 13, 1979, she filed a new claim based on the employment mentioned and, except for a two-week period during which she was employed, received benefit until April 29, 1980, when she began working at the local unemployment insur ance office. Her baby was expected May 23, 1980, and was in fact born on May 25, 1980.
Some months earlier, after being turned down several times by prospective employers because she was pregnant, she had enquired at the unemploy ment insurance office about maternity benefit. She appears to have been misinformed on the subject by the clerk to whom she spoke. When she enquired again on starting to work on April 29, it was discovered that she had drawn benefit for several weeks in the eight-week period preceding the expected date of her confinement. She received a notice saying:
... you are not entitled to receive maternity benefits under Section [sic] 30(2) and 46 of the Unemployment Insurance Act as maternity benefits are only paid in the first 15 weeks for which benefits are claimed and payable. As you have collected the first 15 weeks of benefits, benefit is suspended from 23 March 1980. You may be eligible for regular Unemployment Insurance benefits after your child is born.
The respondent was also notified that she would be required to repay the amounts she had received for weeks after March 23, 1980.
On appeal, the decision of the insurance officer was confirmed by the Board of Referees, and was subsequently reversed by the Umpire in the deci sion which is attacked in this application.
Before setting out the statutory provisions referred to by the insurance officer, on the inter pretation of which this case turns, it will be useful to recall the statutory setting in which they oper ate. Entitlement to unemployment insurance ben efit is provided for in subsection 17(1). It reads:
17. (1) Unemployment insurance benefits are payable as provided in this Part to an insured person who qualifies to receive such benefits.
With respect to the qualifications required, though the provisions have been amended since the Bliss case,' the analysis made by Ritchie J. in that case is still applicable. I pause to note that the present case, as I see it, does not turn on the same qualification requirement of ten weeks' insurable employment in the twenty weeks between the thir tieth and fiftieth week immediately preceding the expected date of confinement, a qualification which the respondent appears to have met, but turns on wording of subsection 30(2) which has been amended since the Bliss case arose. The particular wording will be considered later in these reasons.
In the Bliss case, Ritchie J. said [at pages 186-187]:
The basic qualifications for the receipt of benefits are defined in s. 17 of the Act as follows:
17. (2) An insured person qualifies to receive benefits under this Act if he
(a) has had eight or more weeks of insurable employment in his qualifying period, and
(b) has had an interruption of earnings from employment.
A considerable number of conditions of disentitlement are engrafted on this broad base, the most all encompassing of which is found in s. 25 which provides as follows:
1 Bliss v. The Attorney General of Canada, [1979] 1 S.C.R. 183.
25. A claimant is not entitled to be paid benefit for any working day in an initial benefit period for which he fails to prove that he 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 any prescribed illness, injury or quarantine on that day.
Other restrictions on entitlement to benefits are enumerated in s. 16(1)(a) where the word "disentitled" is defined as follows:
16. (a) "disentitled" means to be disentitled under sections [sic] 23, 25, 29, 33, 36, 44, 45, 46 or 54 or under a regulation;
The section forming the subject of this appeal is s. 46 and I think that its meaning and purpose can best be appreciated by considering it in conjunction with s. 30. These two sections are concerned with the entitlement of women to benefits during a specified part of the period of pregnancy and childbirth and it must be remembered that prior to the 1971 revision of the Act there was no provision made for any benefits being payable to such women who were not capable of and available for work during that period although pregnancy and childbirth did not exclude a woman from entitlement to the regular benefits for so long as she continued to be capable of and available for work within the meaning of s. 25.
After setting out sections 30 and 46, the learned Judge continued [at pages 188-189]:
These sections served to reverse the situation which previously existed so that pregnant women who can meet the conditions specified in s. 30(1) are entitled to the special benefits which that section provides during the period referred to in s. 30(2) that begins eight weeks before the confinement is expected and ends six weeks after the week in which it occurs. These benefits are payable irrespective of whether or not the claimant is capable of and available for work during that period.
Section 46, however, makes it plain that the extended ben efits made available to all pregnant women under s. 30 are accompanied by a concomitant limitation of entitlement which excludes these women from any benefits under the Act during the period not exceeding 15 weeks that commences 8 weeks before her confinement is expected and terminates 6 weeks after the week in which it occurs unless she can comply with the condition of entitlement specified in s. 30(1). When these two sections are read together, as I think they must be, it will be seen that the governing condition of entitlement in respect of "unemployment caused by pregnancy" is the fulfilment of the condition established in s. 30(1) and that unless a claimant has had the "ten weeks of insurable employment" thereby required, she is entitled to no benefits during the period specified in s. 46.
The present appellant's "interruption of employment" occurred four days before the birth of her child and was therefore clearly "unemployment caused by pregnancy", but she had not fulfilled the conditions required by s. 30(1) when she applied for unemployment insurance six days later and this was the reason for her disentitlement.
The appellant's case, however, is that she is not claiming s. 30 pregnancy benefits at all but rather that she was capable of and available for work but unable to find suitable employment at the time of her application so that but for s. 46 she would have been entitled to the regular benefits enjoyed by all other capable and available claimants, and it is contended that in so far as that section disentitles her to the enjoyment of these benefits, it is to be declared inoperative as contravening s. 1(b) of the Canadian Bill of Rights in that it would constitute discrimination by reason of sex resulting in denial of equality before the law to the particular restricted class of which the appellant is a member.
Ritchie J. then dealt with the point on the Canadian Bill of Rights [R.S.C. 1970, Appendix III] and in the course of doing so said [at pages 190 and 1941:
As I have indicated, s. 30 and s. 46 constitute a complete code dealing exclusively with the entitlement of women to unemployment insurance benefits during the specified part of the period of pregnancy and childbirth; these provisions form an integral part of a legislative scheme enacted for valid federal objectives and they are concerned with conditions from which men are excluded.
To summarize all the above, I am of opinion that s. 46 forms an integral part of a valid scheme of legislation enacted by Parliament in discharge of its legislative authority under the British North America Act, and that the limitation on entitle ment to benefits for which the section provides is to be read in light of the additional benefits provided by the scheme as a whole and specifically by the provisions of s. 30 of the Act.
When the present case arose, subsections 30(1) and (2) [as am. by S.C. 1974-75-76, c. 66, s. 22; 1976-77, c. 54, s. 38] and section 46 read as follows:
30. (1) Notwithstanding section 25 or 46 but subject to this section, benefits are payable to a major attachment claimant who proves her pregnancy, if she has had ten or more weeks of insurable employment in the twenty weeks that immediately precede the thirtieth week before her expected date of confine ment; and for the purposes of this section, any weeks in respect of which the major attachment claimant has received benefits under this Act or any prescribed weeks that immediately precede the thirtieth week before her expected date of confine ment shall be deemed to be weeks of insurable employment.
(2) Benefits under this section are payable for each week of unemployment in the period
(a) that begins
(i) eight weeks before the week in which her confinement is expected, or
(ii) the week in which her confinement occurs,
whichever is the earlier, and (b) that ends
(i) seventeen weeks after the week in which her confine ment occurs, or
(ii) fourteen weeks after the first week for which benefits are claimed and payable in any benefit period under this section,
whichever is the earlier,
if such a week of unemployment is one of the first fifteen weeks for which benefits are claimed and payable in her benefit period.
46. Subject to section 30, a claimant is not entitled to receive benefit during the period that commences eight weeks before the week in which her confinement for pregnancy is expected and terminates six weeks after the week in which her confine ment occurs.
On the facts of the present case it appears to me, as I have already indicated, that the respond ent had the necessary ten weeks of employment or weeks of benefit, in the twenty weeks between the thirtieth and fiftieth weeks immediately preceding her expected date of confinement, and can thus satisfy that qualification requirement of subsection 30(1). That distinguishes her case from the Bliss case. But even though qualified under subsection 30(1), she is entitled, in the period to which section 46 applies, only to such benefits as are provided by subsection 30(2).
It will be observed that the period for which benefit is payable under subsection 30(2) is not necessarily the period mentioned in section 46. A woman who proves her pregnancy, that is to say, as I interpret subsection 30(1), who claims benefit because she is unemployed and is pregnant, is entitled to benefit, notwithstanding that she is not capable of and available for work, for each week of unemployment in the period which begins either (1) eight weeks before the expected week of her confinement, or (2) the week in which her confine ment occurs, whichever is the earlier. If the woman continues to work until the baby is born, the beginning of the period is thus the week in which the birth occurs. As the respondent was unemployed when the eight-week period began, the eighth week is thus in her case the earlier week, and it is the earliest week for which she might have been qualified for benefits under
section 30. This, as it seems to me, also serves to limit the application of paragraph (b) in her case to the period referred to in subparagraph (b)(ii), that is to say, fourteen weeks after the eighth week referred to in paragraph (a), thus making a total of fifteen weeks.
Had she not been unemployed when the eighth week began, she might have had the qualification of subparagraph (b)(i) for benefit under section 30 for a longer period than six weeks after the week of her child's birth, as she was in fact employed for a brief period shortly before her baby was born. However, as I see it, the combined effect of section 30 and section 46 is to make the fact of that employment in the period to which section 46 refers irrelevant to her claim for benefit in that period.
The difficulty with her claim for benefit for the eight weeks prior to her expected date of confine ment and the six weeks following the week of the birth of her child arises not on the wording of paragraphs (a) and (b) of subsection 30(2), but on the wording which follows paragraph 30(2)(b), that is to say, the wording:
... if such a week of unemployment is one of the first fifteen weeks for which benefits are claimed and payable in her benefit period.
In particular, the problem lies in determining what is meant by "her benefit period" in that part of the subsection.
The expression "benefit period" is defined in section 2 of the Act [as am. by S.C. 1976-77, c. 54, subs. 26(1)] as meaning the period described in sections 19 and 20. Section 19 [as am. by S.C. 1976-77, c. 54, s. 32] and the relevant parts of section 20 [as am. by S.C. 1976-77, c. 54, s. 33] provide:
Benefit Period
19. When an insured person who qualifies under section 17 makes an initial claim for benefit, a benefit period shall be established for him and thereupon benefit is payable to him in accordance with this Part for each week of unemployment that falls in the benefit period.
20. (1) A benefit period begins on the Sunday of the week in which
(a) the interruption of earnings occurs, or
(b) the initial claim for benefit is made,
whichever is the later.
(2) Subject to subsections (7) to (9) and sections 37 to 39, the length of a benefit period is fifty-two weeks.
(3) A benefit period shall not be established for the claimant if a prior benefit period has not terminated.
(6) A benefit period is terminated when
(a) no further benefit is payable to the claimant in his benefit period,
(b) the benefit period would otherwise terminate under this section,
(e) fifty weeks of benefit have been paid to the claimant in his benefit period, or
(d) the claimant
(i) requests that a benefit period that has been established for him be terminated,
(ii) makes a new initial claim for benefit, and
(iii) qualifies to receive benefit under this Act, whichever first occurs.
These provisions undoubtedly define the benefit period in which the respondent was receiving ben efits prior to March 23, 1980, and if that is what is referred to by the words "her benefit period" at the end of subsection 30(2), it is clear that having had a benefit period established as far back as September 13, 1979, and having received benefit for more than fifteen weeks in it, none of the eight weeks immediately prior to the week in which her confinement was expected was one of the first fifteen weeks for which benefit was claimed and payable in "her benefit period". The question whether the expression "her benefit period" in subsection 30(2) refers to her "benefit period" as defined in section 2 is, however, obscured by the presence in subparagraph 30(2)(b)(ii) of the expression "any benefit period under this section".
On a first reading, what this suggests is that there is a special benefit period under section 30, and that the expression "her benefit period" at the
end of subsection 30(2) refers to the same period, that is to say, the period to be ascertained by the application of paragraphs (a) and (b) of the sub section to the particular case so as to qualify the woman for benefit under section 30 for that period notwithstanding section 46 and notwithstanding her inability to qualify under section 25 as being capable of and available for work.
I do not think, however, that that interpretation can prevail.
It may be noted first that if it were to prevail, it would seem that the amendment of subsection 30(2) made by S.C. 1976-77, c. 54, subs. 38(2), works a marked and, as it seems to me, unlikely change in what had previously been the effect of the subsection. In the subsection as enacted in 1971 by the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, and as amended by S.C. 1974-75-76, c. 66, s. 22, it was clear that what was referred to was the [initial] benefit period defined by section 2.
In the 1971 Act, subsection 30(2) read:
30....
(2) Benefits under this section are payable for each week of unemployment in
(a) the fifteen week period that begins eight weeks before the week in which her confinement is expected, or
(b) the period that begins eight weeks before the week in which her confinement is expected and ends six weeks after the week in which her confinement occurs,
whichever is the shorter, if such a week falls in her initial benefit period established pursuant to section 20 exclusive of any re-established period under section 32.
Subsection 30(2) was repealed and substituted for by the 1974-75-76 statute. The substituted provision read:
30....
(2) Benefits under this section are payable for each week of unemployment in the period
(a) that begins
(i) eight weeks before the week in which her confinement is expected, or
(ii) the week in which her confinement occurs, whichever is the earlier, and
(b) that ends
(i) seventeen weeks after the week in which her confine ment occurs, or
(ii) fourteen weeks after the first week for which benefits are claimed and payable under this section,
whichever is the earlier,
if such a week of unemployment falls in her initial benefit period established pursuant to section 20 exclusive of any re-established period under section 32.
The intent of these provisions seems to have been to ensure that no more than fifteen weeks of benefit should be paid under section 30 to a woman in the period of her pregnancy and the six-week period that followed the week of the birth of her child.
The wording "benefit period established pursu ant to section 20 exclusive of any re-established period under section 32" served to identify the "initial benefit period" which was defined and provided for at that time [by para. 2(1)(j) of S.C. 1970-71-72, c. 48], as opposed to the re-estab lished benefit period which was provided for under section 32. That period was abolished in the amendments made by S.C. 1976-77, c. 54 [s. 40]. In the same amendments, the expression "initial benefit period" was also dropped [by subs. 26(6)], and the definition of "benefit period" which has already been cited appeared [in subs. 26(1)].
While the wording of the present subsection 30(2) contains no reference to section 20, it is capable of being read as referring to the benefit period defined by section 2, and it appears to me to be more in harmony with the Act to read it that way than to read section 30 as setting up a differ ent "benefit period" from that defined by sections 2, 19 and 20.
It also appears to me that the word order of subparagraph 30(2)(b)(ii) is somewhat convolut ed. The subparagraph can and, as I think, should be read not as referring to a "benefit period" provided by section 30, but as saying:
... fourteen weeks after the first week for which benefits are claimed and payable under this section [in any benefit period.]
I say this because the use in the subparagraph of the expression "any benefit period", when, as it seems to me, there could be only one benefit period defined for the particular case by subsection 30(2), indicates that what is referred to is not a "benefit period" defined by the subsection but a benefit period as defined in section 2.
Accordingly, my conclusion, which I reach with some reluctance because it seems to me to result in the respondent being disentitled to benefits, as was the applicant in the McPherson case, 2 just when they were most likely to be needed, is that the words "her benefit period" at the end of subsection 30(2) refer to the respondent's benefit period which began on September 13, 1979, and that accordingly she was not entitled to benefit in the period in question.
I would set aside the decision and refer the matter back to the Umpire for determination of the respondent's appeal on the basis that she was not entitled to unemployment insurance benefit in the period which began on March 23, 1980, and ended six weeks after the week in which her baby was born.
LE DAIN J.: I concur. CLEMENT D.J.: I concur.
2 McPherson v. Attorney General of Canada, [1973] F.C. 511 (C.A.).
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