Access to Employment Insurance Benefits
  
A decision of an Umpire under the Employment Insurance Act²⁹¹ has reviewed eligibility criteria against the claim that they infringed equality rights under section 15 of the Charter.²⁹² The case was brought on appeal from a Board of Referees that had decided a claimant did not qualify for regular benefits, maternity benefits or sick benefits because she was 33 hours short of the requisite 700 hours of insurable earnings. The 700 hour rule²⁹³ had replaced (in 1996) previous criteria that had established eligibility as a function of having worked at least 15 hours per week for a period ranging from 12 to 20 weeks, depending on the regional rate of unemployment. In the case of the claimant, her responsibilities as a mother had prevented her from working full time as a nurse. She therefore had worked part-time as a nurse on call in the city of Brandon. When she relocated to Winnipeg due to her husband’s change of employment (and after a period during which they had tried to maintain two residences) she applied for benefits under the Employment Insurance Act. At that time she was pregnant with her second child and had been advised by her doctor to cease working for reasons related to her pregnancy.

Expert witnesses were heard by the Umpire regarding both the purpose and effect of the changes to the eligibility criteria governing benefits under the EI Act. One witness pointed out that the government had been concerned about the tendency of employers to create part-time employment of less that 15 hours per week in order to escape the contribution requirements of the EI Act. In order to halt actual and potential erosion of those covered by the Act the new criteria introduced the notion of "first dollar coverage", designed to bring payroll taxes more into line with expected benefits under the EI Act. It was explained that under the old criteria a part-time worker who met the 15 hours per week minimum for 12 weeks (thus accumulating only 180 hours of insurable earnings) had been eligible for benefits, whereas an employee who had worked 10 hours a day, 7 days a week for 10 weeks (thus accumulating 700 hours of insurable earnings) was not. The new rules based on "first dollar coverage" were thus designed to introduce greater equity into the benefits scheme.

As to the composition of the part-time labour force, expert testimony established that women constitute over 80% of adult wage earners (age 25-54) working part-time. To a certain extent, this is explained by the fact that women remain the primary caregiver with respect to children, forcing them to try to balance domestic responsibilities with the need to work in order to supplement family income. Other factors of a socio-historical nature, prevailing gender roles and market conditions contribute as well to the concentration of women in part-time employment. While it was claimed that the changes to the eligibility criteria were motivated by a desire to improve access to benefits by part-time workers, one expert witness found otherwise. In referring to that testimony, the Umpire said: "It was her view that the weeks-to-hours change and the higher threshold of eligibility for re-entrance means that it is significantly more difficult for part-timers to qualify for benefits. When they do qualify, benefits are often of a shorter duration. Her study also revealed that there has been a dramatic drop in the proportion of the unemployed receiving employment insurance benefits and that the reduction has been greater for women than for men. Between 1996-97 and 1997-98, among regular claimants, claims by women dropped 20 percent, compared with a 16 percent decline for men."²⁹⁴

The EI Act also defines major attachment to the workforce in terms of a minimum number of hours (700) of insurable income. Only major attachment claimants are eligible for maternity and parental benefits. Whereas the old rules for determining major attachment (based on number of weeks worked) were arguably gender neutral, the new criteria were not. The Umpire summarized the claimant’s argument:

A standard based on weeks of employment does not tend to favour either men or women, since every man and woman who survives a calendar year has had exactly the same number of weeks in that year to pursue paid employment. Since women devote a significant portion of their available working hours to unpaid labour, spending roughly double the time spent by men on unpaid work, women have fewer hours each year to devote to paid employment. Since the average man spends almost a third more hours each year in paid employment than the average woman, an entrance requirement based solely on total hours of paid employment in a year is more easily met by male workers who have more hours available for paid employment. In other words, the hours-based standard has a natural tendency to exclude more women than men.²⁹⁵

It was argued that the hours-based criteria for eligibility for regular benefits does not draw a distinction between groups of people based on a personal characteristic. However, the Umpire found that this view did not fully consider the possible impact of the neutral rule on a group already burdened with disadvantage. He pointed out that the 700 hour rule for regular benefits was arrived at by assuming a 35-hour work week for a given period of time, thus leaving the average women at a disadvantage. In his own words:

...as the evidence clearly indicates, women continue to perform two-thirds of unpaid labour, leaving them with fewer hours to devote to paid employment. Some women, like the appellant, with children, not yet of school age, face the toughest challenge. They are required to alter their paid work arrangements to meet demands of unpaid work, while the age or presence of children has little impact on men’s paid or unpaid work patterns. They are often unable to undertake more hours of paid work because their juggling act would become much more complicated and may be just too stressful. Thus, the hours-based system disproportionately affects women by increasing the number of hours of work required to qualify and lowering the number of weeks of benefits if they are unable to increase their hours of work.²⁹⁶

The Umpire then went on to consider if the differential impact was based on a distinction that amount to a listed or analogous ground of discrimination under section 15 of the Charter. It had been argued that the distinction here was rooted in employment status and thus did not amount to an analogous ground. In short, the claimant had been denied benefits due to her weak labour force attachment calculated as a function of the number of hours worked in the preceding

52-week period, not because of some immutable personal characteristic. Notwithstanding, the Umpire found that the differential impact was based on the status of a person being in a parent and child relationship and that this amounted to an analogous ground under section 15. He said: "Parenthood is central to one’s identity and personhood, it is a status that is immutable. It is true that the status will change when the children are no longer in need of a caregiver, but that does not change the fact that their status is immutable until that time comes. The appellant’s status as a parent and primary caregiver is one that the government has no legitimate interest in expecting her to change to receive equal treatment under the law. When a mother works part-time because of her unpaid parental responsibilities she should not receive inferior employment insurance coverage on that account."²⁹⁷

The Umpire also found that the underlying purpose of section 15 of the Charter had been breached as well. This was so because the definition of major work force attachment ignored the contribution women made through unpaid work in the home: "The former Act gave some credit for completion of a minimum calendar based period of work for major attachment. Although a woman, under the present legislation, who works part-time year round has a strong attachment to the workforce, her attachment to the workforce is less than that of a man who is able to easily accumulate employment insurance dependence by working the 700 hours in the summer and collecting employment insurance benefits every winter. Since the appellant’s attachment to the work force is deemed inadequate, not because she lacks regular employment, but because her weekly hours of paid employment are limited by her unpaid obligations, the dignity of the part time working mother with children is more directly violated."²⁹⁸ He also found that the definition of workforce attachment promoted the view that a woman is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society.

As to remedy, the Umpire found that he did not have the authority to declare the relevant sections of the Employment Insurance Act to be invalid. He therefore returned the matter to the Board of Referees, differently constituted, to rehear the application of the complainant as if the legislative provisions in question had never been enacted.

Table of contents  Previous page  Next page

End Notes