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EI - History. Chalifour-Racine v. Canada (Attorney General)
In Chalifour-Racine v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal allows a Charter s.15 ['discrimination'] JR, this brought against a ruling by the Appeal Division of the Social Security Tribunal supporting provisions of the EI Act which require that claimants "are not entitled to receive some or all of the regular employment insurance (EI) benefits that they otherwise would have been entitled to receive when they lose their employment shortly before, during, or shortly following their maternity and parental leaves".
Here the court usefully sets out a "Brief History of Employment Insurance in Canada", focussing a maternity (and related) benefits:[10] Employment insurance legislation was first introduced in this country in the 1935 Employment and Social Insurance Act, S.C. 1935, c. 38 (the 1935 Act) in response to massive unemployment caused by the Great Depression. However, that legislation was short-lived. In 1935, the then newly-re-elected federal government led by Prime Minister Mackenzie King referred the 1935 Act to the Supreme Court of Canada for an advisory opinion on the constitutionality of the legislation, and in the Reference re The Employment and Social Insurance Act, 1936 CanLII 30 (SCC), [1936] S.C.R. 427, aff’d 1937 CanLII 363 (UK JCPC), [1937] A.C. 355 (P.C.), the 1935 Act was found to be ultra vires.
[11] In 1940, the Royal Commission on Dominion-Provincial Relations (commonly called the Rowell-Sirois Commission) recommended that unemployment insurance should be a federal responsibility: Canada, Report of the Royal Commission on Dominion-Provincial Relations, Book II, Recommendations (Ottawa: King’s Printer, 1940) at pp. 24–25. That same year, the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) was amended to add subsection 91(2A), which grants Parliament exclusive jurisdiction over unemployment insurance.
[12] Legislation largely identical to the 1935 Act was adopted by Parliament in 1940 and was renamed the Unemployment Insurance Act, 1940, S.C. 1940, c. 44 (the UI Act). Like the current EI Act, the UI Act created a compulsory insurance scheme to which participating employees and employers were required to contribute through premiums. The UI Act provided temporary partial wage replacement benefits to participating employees who lost their employment and met the criteria for entitlement, which included being available for alternate employment. That said, unlike the situation today, coverage was limited in the UI Act. Many groups were excluded, including most domestic servants, teachers, nurses, government employees, and hospital workers, which were likely the roles held by many of the women who were working at the time. In addition, the UI Act did not provide for pregnancy, parental, illness, injury, quarantine, or compassionate care benefits.
[13] Over the years between 1940 and 1971, the UI Act was amended and republished in the revised statutes, often to increase benefits and the scope of those covered by the unemployment insurance scheme. However, in 1950, regulations were passed that required married women to meet additional criteria before being eligible to receive benefits: Unemployment Insurance Commission Regulations, 1949, SOR/49‑524, s. 5A (ad. SOR/50‑515, Schedule A, s. II). These regulations disqualified married women from receiving benefits for two years after they were married, unless they met a long series of conditions. The regulations resulted in "“some 12,000 to 14,000 recently married women [being] disqualified annually”" while they were in force: Canada, Committee of Inquiry into the Unemployment Insurance Act, Report of the Committee of Inquiry into the Unemployment Insurance Act (Ottawa: Queen’s Printer, 1962) at p. 31 (Gill Committee Report). As noted by Justice Deschamps, writing for the Supreme Court of Canada in Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669 [EI Act Reference] at paragraph 19, these "“… provisions regarding women attest to the social mores of the day: women were expected to be supported by their husbands, and to stop working after they were married.”" These regulations remained in force until 1957, but questions lingered on after then regarding whether it was appropriate for women who had small children to have access to unemployment insurance benefits.
[14] In 1962, the Gill Committee recommended that eligibility for pregnant women and mothers of young children for unemployment insurance be made more restrictive. The Committee observed: "“It has also been brought to our attention that in many cases married women whose employment has terminated by reason of pregnancy, file claims for benefit and are able to draw benefit although their availability for employment is extremely doubtful”": Gill Committee Report at p. 134. Although these recommendations were not adopted, pregnant women were often in any event excluded from benefits for several weeks before and after the birth of a child by those administering unemployment insurance because they were thought not to be able to work during this period: Ann Porter, Gendered States: Women, Unemployment Insurance, and the Political Economy of the Welfare State in Canada, 1945-1997 (Toronto: University of Toronto Press, 2003) at pp. 67–68; Gill Committee Report at p. 135. As noted by Justice Deschamps at paragraph 19 of the EI Act Reference, "“[w]hile working was not exactly regarded as a whim for a woman whose husband was working, it was considered to be optional and unusual at the time. From this perspective, it is easy to understand why women’s claims for benefits were looked on as suspect.”"
[15] By the late 1960s, societal changes were afoot that saw a much greater percentage of women enter the labour market: EI Act Reference at para. 20. In 1967, the federal government established the Royal Commission on the Status of Women in Canada, which, among other things, made recommendations to amend the UI Act to provide wage replacement benefits to working women who had babies: Canada, Report of the Royal Commission on the Status of Women in Canada (Ottawa: Information Canada, 1970) (Status of Women Report) at pp. 87–88, 397–398. The Royal Commission relatedly expressed concern that UI Commission policy—that a woman whose employment has been terminated because of her pregnancy is considered unavailable for work and therefore ineligible for payment of benefits for six weeks before and after her confinement—discriminates against women who want and are able to work for some of this 12-week period: Status of Women Report at p. 84.
[16] Also, at roughly the same time, the Report of the Study for Updating the Unemployment Insurance Programme (Ottawa: Queen’s Printer, 1968) and the 1970 White Paper entitled Unemployment Insurance in the 70’s (Ottawa: Queen’s Printer, 1970), recommended the introduction of new types of unemployment insurance benefits, including maternity and sickness benefits.
[17] These reports were shortly followed by a major overhaul of the unemployment insurance regime in 1971 in the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48 (the 1971 UI Act). The 1971 UI Act was "“designed to amend the [legislation]… for the first time in a more comprehensive manner than ha[d] been the case on previous occasions”": Canada, House of Commons Debates, 28th Parl., 3rd Sess., Vol. 5 (19 April 1971) at p. 5037 (Hon. Bryce Mackasey, Minister of Labour).
[18] The 1971 UI Act revamped the legislation and extended coverage, with relatively few exceptions, to most Canadian employees, working the requisite number of hours. In addition, for the first time, the legislation provided benefits to those who experienced interruptions of earnings due to illness, injury, quarantine, pregnancy, or retirement. The Honourable Minister Mackasey, when discussing the adoption of maternity benefits during the debate in Parliament prior to the adoption of the 1971 UI Act, stated:We propose to provide unemployment insurance benefits to those people in the work force who are temporarily without earnings as a result of maternity. This is quite consistent with progress in an advanced industrial society. It is not revolutionary, because many countries around the world have already incorporated this feature into their plans. This is a way by which we can provide some security for the person who must retire from the work force in order to have a child.
I think that before we get too smug about women in the work force, we should realize it is a sad commentary that at least one million women in the Canadian work force are in it not because they want to buy a second automobile or a coloured television set but because their income means the difference between poverty and survival. When, in such instances, a woman is deprived of her income as a result of maternity, this creates terrible hardship. I am hopeful that drawing unemployment insurance after a two weeks waiting period, for at least 15 weeks will help the working mother.
Canada, House of Commons Debates, 28th Parl., 3rd Sess., Vol. 5 (19 April 1971) at p. 5039. [19] To receive maternity benefits under the 1971 UI Act, claimants were required to demonstrate that at least ten of their insurable weeks were in the 20-week period between the 31st and 50th weeks before the expected date of birth (the so-called "“magic ten rule”"). Up to 15 weeks of maternity benefits were available for women with 20 or more insurable weeks who met the magic ten rule and who left the labour force to give birth and care for their newborn infants. Maternity benefits were payable over the period from eight weeks prior to the expected date of confinement to six weeks after that date and had to be taken in the first 15 weeks of a benefit period. By virtue of section 46 of the 1971 UI Act, birth mothers were precluded from receiving job loss benefits during the 15 weeks where maternity benefits would have been payable had the claimant met the magic ten rule. In addition, there was a cap on combining benefits such that the combined total of sickness, maternity, and regular benefits could not exceed 15 weeks during the initial benefit phase during which maternity benefits were payable.
[20] In Bliss v. Attorney General of Canada, 1978 CanLII 25 (SCC), [1979] 1 S.C.R. 183 [Bliss], the Supreme Court of Canada found that these restrictions did not violate the guarantee of equality before the law set out in the Canadian Bill of Rights, S.C. 1960, c. 44 (the Canadian Bill of Rights) in the case of a claimant who lost her job shortly before giving birth but did not meet the magic ten rule. In result, the appellant received no benefits for either maternity or job loss.
[21] In 1984, the Act to amend the Unemployment Insurance Act, 1971 (No. 3), S.C. 1980-81-82-83, c. 150 introduced 15 weeks of adoption benefits and amended the maternity leave provisions by deleting section 46 of the 1971 UI Act. The deletion of this provision followed the adoption of subsection 3(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the CHRA) on July 1, 1983, enacted by S.C. 1980-81-82-83, c. 143, s. 2, which provides that "“where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex”". In Morrell v. Canada (Employment and Immigration Commission), 1985 CanLII 91 (CHRT), 8 C.C.E.L. 112 (C.H.R.T.) [Morrell], the Canadian Human Rights Tribunal (the Tribunal) found that Parliament repealed section 46 of the 1971 UI Act to ensure conformity with the requirements of subsection 3(2) of the CHRA.
[22] In 1990, the Act to amend the Unemployment Insurance Act and the Employment and Immigration Department and Commission Act, S.C. 1990, c. 40 made several changes to the unemployment insurance program. Of relevance to this application, the amendments provided for 10 weeks of parental benefits, payable to either parent, replacing paternity benefits (that had been introduced in 1988) and adoption benefits. The legislation also allowed claimants to combine weeks of special benefits (i.e. benefits payable for reasons other than job loss) for a maximum of 30 weeks.
[23] Over a decade later, the Tribunal found that this 30-week limit had a discriminatory effect on women: McAllister-Windsor v. Canada (Human Resources Development), 2001 CanLII 20691 (CHRT) [McAllister-Windsor]. The provision, while on its face a neutral rule, had a disproportionate and adverse effect on pregnant women who claimed EI sickness benefits: McAllister-Windsor at para. 52. The regime was subsequently amended to extend the benefit period and the entitlement to special benefits for maternity claimants who, without the amendment, could not receive all their special benefits: Budget Implementation Act, 2001, S.C. 2002, c. 9. Subsection 10(13) of the EI Act now allows claimants to stack special benefits in accordance with the requirements of that subsection and subsections 10(14) and (15).
[24] In 1996, Parliament repealed the UI Act and enacted the Employment Insurance Act, S.C. 1996, c. 23, as the legislation was then re-named.
[25] In 2000, the Budget Implementation Act, 2000, S.C. 2000, c. 14, expanded parental benefits from 10 to 35 weeks, which, when combined with maternity benefits, meant that new mothers were henceforth entitled to one year of combined maternity and parental benefits.
[26] In 2009, the Fairness for the Self-Employed Act, S.C. 2009, c. 33 established a scheme to provide for the payment of special benefits to self-employed persons who were previously not entitled to receive them if they elect to pay into and be covered by the employment insurance regime.
[27] In 2017, the Budget Implementation Act, 2017, No. 1, S.C. 2017, c. 20 allowed for the payment of parental benefits over a longer period at a lower benefit rate and allowed maternity benefits to be paid as early as the 12th week before the expected week of birth.
[28] Thus, over the last 50 plus years, the employment insurance system has provided employees, and now self-employed workers who choose to participate in the scheme, increasing wage replacement coverage for the interruption of earnings experienced following the birth or adoption of children. However, one limitation on this coverage has remained constant throughout, namely the provisions in the EI Act that the applicants challenge, which prevent the stacking of maternity and parental benefits on top of wage replacement benefits. As noted, these restrictions deprive those in the situation of the applicants of some or all of the EI job loss benefits that they otherwise would have been entitled to receive when they lose their employment shortly before, during, or shortly following their maternity and parental leaves.
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