2013 FCA 15, 2013 FCA 15

[2014] 3 F.C.R. 117 A-243-11 2013 FCA 15 Christian Martin ( Applicant ) v . Attorney General of Canada ( Respondent ) Indexed as: Martin v. Canada (Attorney General) Federal Court of Appeal, Nadon, Dawson and Stratas J.J.A.—Toronto, September 18, 2012; Ottawa, January 24, 2013.

Employment Insurance –– Judicial review of Umpire’s decision allowing Canada Employment Insurance Commission’s appeal from Board of Referees’ decision holding that applicant qualified for benefit period by virtue of Employment Insurance Act , s. 12(4) –– Board finding that applicant entitled to receive 35 weeks of parental benefits notwithstanding that spouse thereof already approved for 35 weeks of parental benefits –– Board thereby reversing Commission’s determination that applicant not entitled to 35 weeks of parental benefits –– Applicant’s spouse giving birth to twin girls — Applicant filing application for parental benefits with Commission –– Claiming maximum 35 weeks of benefits available to care for children, requesting that claim be considered separately from that of spouse –– Umpire holding that Board erring in interpreting relevant provisions of Act; that Act, ss. 2(1) , 7 , 8 , 12 , 23 not infringing applicant’s rights under Canadian Charter of Rights and Freedoms, s. 15(1) ; that Board correctly determining not having jurisdiction to address applicant’s Charter issues –– Whether Umpire erring in concluding that Act not allowing each parent of twins to receive 35 weeks of parental benefits; whether correctly determining that Board not having jurisdiction to decide Charter issues; whether erring in determining that parental benefit provisions of Act not infringing Charter, s. 15(1) –– No basis to conclude that Umpire’s

interpretation of relevant provisions resulting from error therefrom; Umpire’s decision constituting correct

interpretation of Act –– Act, ss. 12(3) (b), 12(4)(b), 23 examined in particular herein –– Umpire’s

interpretation thereof entirely consistent with purpose of parental benefits established by Act, nature of employment scheme –– Umpire properly holding that Board correctly deciding not having jurisdiction to address Charter issues –– Correctly finding bound by Supreme Court of Canada decision in Tétreault-Gadoury v.

Canada (Employment Insurance Commission); that Act expressly giving Umpire, not Board, power to decide questions of law –– Umpire not erring in determining, under second part of Charter, s. 15 test, that distinction made by Act between parents of twins, others not creating disadvantage by perpetuating prejudice or stereotyping ––– Carefully considering evidence, submissions put forward by applicant; considering contextual factors set by case law on Charter, s. 15 inquiries –– Application dismissed.

Constitutional Law — Charter of Rights — Equality Rights — Applicant’s spouse giving birth to twin girls — Board finding that applicant entitled to receive 35 weeks of parental benefits notwithstanding that spouse thereof already approved for 35 weeks of parental benefits — Umpire allowing Canada Employment Insurance Commission’s appeal from that decision — Umpire holding that Act , ss. 2(1) , 7 , 8 , 12 , 23 not infringing applicant’s rights under Charter, s. 15(1) — Umpire not erring in determining, under second part of Charter, s. 15 test, that distinction made by Act between parents of twins, others not creating disadvantage by perpetuating prejudice or stereotyping ––– Carefully considering evidence, submissions put forward by applicant; considering contextual factors set by case law on Charter, s. 15 inquiries.

This was an application for judicial review of an Umpire’s decision allowing the Canada Employment Insurance Commission’s appeal from a decision of the Board of Referees holding that the applicant was qualified for a benefit period by virtue of subsection 12(4) of the Employment Insurance Act . More particularly, the Board found that the applicant was entitled to receive 35 weeks of parental benefits notwithstanding that his spouse had applied and been approved for 35 weeks of parental benefits.

It thus reversed the Commission’s determination that the applicant was not entitled to 35 weeks of parental benefits on the basis that multiple births and adoptions are treated as single births and adoptions. The Board also held that it had no jurisdiction to deal with the applicant’s arguments involving the Canadian Charter of Rights and Freedoms and that, in the alternative, in denying him the right to parental benefits, the provisions of the Act at issue infringed his rights under subsection 15(1) of the Charter. The applicant’s spouse gave birth to twin girls.

The applicant filed an application for parental benefits with the Commission, indicating that he was claiming the maximum 35 weeks of benefits available for the care of his children. He later wrote again requesting that his claim for parental benefits be considered separately from that made by his spouse whose application for 35 weeks of parental benefits had already been approved by the Commission. On appeal, the Board determined that the effect of paragraph 12(4) (

b) of the Act was to limit a claimant to 35 weeks of benefits for the care of a child resulting from a single pregnancy. It found that the combined effect of subsections 12(1) and 12(4) with paragraph 12(3) (

b) of the Act was that each claimant (applicant and his spouse) could make a claim under paragraph 12(3)( b ). As for the Umpire, he held that the Board had erred in its

interpretation of the relevant provisions of the Act. He stated that subsection 12(4) of the Act clearly supported the respondent’s position that the maximum number of weeks of parental benefits allowable was 35 weeks whether one or more children were born of a single pregnancy. The Umpire also held that subsection 2(1) and sections 7 , 8 , 12 and 23 of the Act did not infringe the applicant’s rights under subsection 15(1) of the Charter and that the Board had correctly determined that it had no jurisdiction to address the Charter issues raised by the applicant.

The issues were whether the Umpire erred in concluding that the Act did not allow each parent of twins to receive 35 weeks of parental benefits; whether he correctly determined that the Board did not have jurisdiction to decide the Charter issues; and whether he erred in determining that the parental benefit provisions of the Act did not infringe subsection 15(1) of the Charter. Held , the application should be dismissed. The applicant argued that the Umpire read paragraph 12(4) (

b) of the Act out of context and without resort to proper principles of

interpretation, claiming that a proper

interpretation of the Act leads to the conclusion that he and his spouse were entitled to two parental leaves. The

interpretation proposed by the applicant could not be right since it flew in the face of Parliament’s clear intention in enacting the provisions at issue. There was no basis to conclude that the Umpire’s

interpretation resulted from an error on his part; his decision was the correct

interpretation of the Act. Paragraphs 12(3) (

b) and 12(4) (

b) of the Act were examined. Based on these provisions, a claimant may receive, during a benefit period, benefits for a maximum period of 35 weeks for the care of one or more newborn children. Benefit periods are established for an individual claimant and are thus claimant specific. Consequently, during that benefit period, paragraph 12(3)(

b) limits to one period of 35 weeks the benefits that a mother or father, as individual and separate claimants, can receive for the care of children. This limit however is subject to a further limit found in paragraph 12(4)(

b) which restricts or limits the period in which parental benefits may be paid for the care of one or more newborn children. That restriction is a maximum of 35 weeks for the care of all children born of a single pregnancy. As for subsection 23(4), which was of greater relevance herein, it addresses the situation where two major attachment claimants “are caring for a child referred to in subsection (1)” allowing them to divide between them up to 35 weeks for the care of their child or children as the case may be. Under

section 23, benefits are available to a major attachment claimant to care for one or more newborn children and, where two major attachment claimants are caring for one or more newborn children of theirs, they may share up to 35 weeks of benefits which are to be divided between them. What

section 23 is undoubtedly saying is that two parents who interrupt work to care for one or more newborn children are entitled to a maximum of 35 weeks of benefits which they may divide howsoever they please. When sections 12 and 23 are read together, the only possible conclusion is that 35 weeks of parental benefits are available in respect of the child or children born of a single pregnancy, irrespective of the number of children born of a single pregnancy and of the number of claimants seeking benefits as a result of that pregnancy. This approach was taken by the Umpire and his

interpretation was entirely consistent with the purpose of the parental benefits established by the Act and the nature of the employment scheme. The purpose of the parental benefits is to compensate parents for the interruption of earnings which occurs when they cease to work or reduce their work to care for a child or children. The scheme is clearly not driven by the parents’ needs or the number of children resulting from a pregnancy.

As to the applicant’s argument that the Act establishes two periods of benefits, i.e. a benefit period under sections 9 and 10 of the Act and an amorphous period under subsection 23(2), that approach was an erroneous one. Although there can be no doubt that the benefit period established pursuant to sections 9 and 10 of the Act is specific to a claimant, the period in which parental benefits may be paid under subsection 23(2) is not. That period is tied to the birth of a child or children (subsection 23(2)).

Consequently, based on all of the provisions that were considered in this case, where two parents/claimants interrupt their earnings to care for their child or children, they cannot jointly receive more than 35 weeks in respect of children born of a single pregnancy. The Umpire held that the Board was correct in deciding that it had no jurisdiction to address the Charter arguments raised by the applicant since the matter had been settled by the Supreme Court of Canada in Tétreault-Gadoury v.

Canada (Employment Insurance Commission) , a decision addressing the Board’s jurisdiction to deal with Charter issues that he was bound to follow. The applicant’s argument that Tétreault-Gadoury was no longer good law given recent decisions of the Supreme Court was rejected. The Umpire correctly found that he was bound by Tétreault-Gadoury ; the Act expressly gives the Umpire, not the Board, the power to decide questions of law and is silent on the Board’s role thereon. The Supreme Court’s subsequent decisions did not expressly overturn that decision even though it was given clear opportunities to do so.

Therefore, Tétreault-Gadoury remains good law. With respect to the applicant’s Charter issue, the Umpire made no error in determining, under the second part of the test regarding Charter,

section 15 inquiries, as established by the Supreme Court’s decision in R. v. Kapp , that the distinction made by the Act between the parents of twins and others did not create a disadvantage by perpetuating prejudice or stereotyping. In making this determination, the Umpire considered the four contextual factors set out by case law.

The Umpire correctly pointed out that the scheme of the Act was not intended to address the particular burdens or difficulties experienced by parents but was concerned with compensating parents for the interruption of their earnings resulting from their taking time off to care for their children. Contrary to the applicant’s assertions, there was no basis whatsoever that his group (parents of twins or other multiples) suffers from pre-existing disadvantage and vulnerability.

It is in the context that the Act intends to benefit different kinds of claimants by providing temporary partial income replacement to those who suffer an interruption of earnings that the Umpire correctly found that there was sufficient flexibility in the Act to accommodate the needs of parents of children who impose a greater burden than other children. There was no basis to disagree with the Umpire.

In conclusion, the Umpire carefully considered the evidence and the submissions put forward by the applicant and, in doing so, considered the contextual factors enunciated by the Supreme Court’s case law on the matter. He thus made no reviewable error in concluding that the provisions at issue were not discriminatory and hence did not violate subsection 15(1) of the Charter . STATUTES AND REGULATIONS CITED 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, 24(1). Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. Employment Insurance Act , S.C. 1996, c. 23, ss. 2(1), 6 , 7 , 8 , 9 , 10 , 11 , 12 , 23 , 117 , 152.05 , 152.09 . Employment Insurance Regulations , SOR/96-332, s. 76.21. Industrial Relations Act , R.S.B.C. 1979, c. 212.

Interpretation Act , R.S.C., 1985, c. I-21, s. 10. Unemployment Insurance Act, 1971 , S.C. 1970-71-72, c. 48. CASES CITED

applied: Tétreault-Gadoury v. Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22, (1991), 81D.L.R. (4th) 358; Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, (1999), 170D.L.R. (4th) 1; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28,[2003] 1 S.C.R. 476. considered: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R.143, (1989), (SCC), 56 D.L.R. (4th) 1; Withler v.

Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396;Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), (SCC), 36 O.R. (3d) 418; Nova Scotia (Worker’s CompensationBoard) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504; Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863, (1986), 29 D.L.R. (4th) 161; Douglas/Kwantlen Faculty Assn. v.Douglas College, (SCC), [1990] 3 S.C.R. 570, (1990), 77 D.L.R. (4th) 94; Cuddy Chicks Ltd. v.

Ontario (LabourRelations Board), (SCC), [1991] 2 S.C.R. 5, (1991), 81 D.L.R. (4th) 121; Canada v. Craig, 2012 SCC 43, [2012] 2S.C.R. 489; Gunn v. Canada, 2006 FCA 281, [2007] 3 F.C.R. 57. referred to: Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203, (1999), 173 D.L.R. (4th) 1;Delisle v. Canada (Deputy Attorney General), (SCC), [1999] 2 S.C.R. 989, (1999), 176 D.L.R. (4th) 513; Miron v.Trudel, (SCC), [1995] 2 S.C.R. 418, (1995), 23 O.R. (3rd) 160; Canada (Attorney General) v.

Lesiuk, 2003 FCA 3,[2003] 2 F.C. 697, leave to appeal to S.C.C. refused [2003] 2 S.C.R. viii; Canada (Canadian Human Rights Commission) v. Canada(Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Chaulk v. Canada (Attorney General), 2012 FCA 190, [2013] CLLC 240-002; Doré v.Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Moldowan v. The Queen, (SCC), [1978] 1 S.C.R. 480, (1977),77 D.L.R. (3d) 112. AUTHORS CITED Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed.

Markham, Ont.: LexisNexis, 2008. APPLICATION for judicial review of an Umpire’s decision (Employment Insurance Act (Re) (2011), CUB 76899) allowing the CanadaEmployment Insurance Commission’s appeal from a decision of the Board of Referees holding that the applicant was qualified for abenefit period by virtue of subsection 12(4) of the Employment Insurance Act. Application dismissed. APPEARANCES Stephen J. Moreau for applicant. Nicole Butcher and Martin Kreuser for respondent. SOLICITORS OF RECORD Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, Toronto, for applicant.

Deputy Attorney General of Canada for respondent. The following are the reasons for judgment delivered in English by [1] Nadon J.A.: In April 2009, Paula Critchley, the applicant’s spouse, gave birth to twin girls. The issue underlying the questionswhich we must answer in this proceeding is whether the applicant and his spouse are both entitled to 35 weeks of parental benefits underthe Employment Insurance Act, S.C. 1996, c. 23 (the Act). [2] Before us is an application for judicial review of a decision of an Umpire (Mr.

Justice Zinn of the Federal Court), [EmploymentInsurance Act (Re) (2011)] CUB 76899, dated May 31, 2011, which allowed the Canada Employment Insurance Commission’s (theCommission) appeal from a decision of the Board of Referees (the Board) rendered on September 11, 2009. [3] By its decision, the Board held that the applicant was qualified for a benefit period by virtue of subsection 12(4) of the Act. Moreparticularly, the Board was of the view that the applicant was entitled to receive 35 weeks of parental benefits notwithstanding that hisspouse had applied and been approved for 35 weeks of parental benefits.

In so concluding, the Board reversed the Commission’sdetermination that the applicant was not entitled to 35 weeks of parental benefits. On May 29, 2009, the Commission had written to theapplicant explaining its decision in the following terms: We are writing to inform you that we cannot pay you parental employment insurance benefits as of April 26, 2009. This is because you have not proven that you are the parent who will be taking the 35 weeks of parental benefits for this birth.

Yourchildren’s mother has applied for the 35 weeks of parental [benefits] and you have stated that you are agreeable to her being paid thesebenefits. I appreciate that you would like to be paid 35 weeks of parental benefits as well due to the fact that your wife gave birth totwins.

But a multiple birth or multiple adoption, for purposes of employment benefits, is treated as a single birth or a single adoption. [4] The Board also held that it had no jurisdiction to deal with the arguments raised by the applicant, and in the alternative, that indenying him the right to parental benefits, the provisions of the Act at issue infringed his rights under subsection 15(1) the Canadian

Charter of Rights and Freedom [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]] (the Charter ). [ 5 ] In allowing the Commission’s appeal from the Board’s decision, the Umpire held that the Board had erred in its

interpretation of the relevant provisions of the Act and that subsection 2(1) , and sections 7 , 8 , 12 and 23 of the Act did not infringe the applicant’s rights under subsection 15(1) of the Charter . The Umpire was also of the view that the Board was correct in its determination that it had no jurisdiction to address the Charter issues raised by the applicant. The Facts [ 6 ] The facts are straightforward and are not disputed. [ 7 ] In April 2009, the applicant and his spouse became parents of twin girls.

On April 27, 2009, the applicant filed an application for parental benefits with the Commission, in which he indicated that he was claiming the maximum 35 weeks of benefits available for the care of his children. He further stated that he was employed by Natural Resources Canada and that he was taking parental leave for the period of April 24, 2009 to January 11, 2010.

Nine days later, on May 6, 2009, the applicant further wrote to the Commission, requesting that his claim for parental benefits be considered separately from that made by his spouse, whose application for 35 weeks of parental benefits had already been approved by the Commission. [ 8 ] As I have already indicated, the Commission wrote to the applicant on May 29, 2009, advising him that his application for 35 weeks of parental benefits could not be accepted because his spouse’s application had already been approved, pointing out to the applicant that the Act treated multiple births and adoptions as single births and adoptions. [ 9 ] Not satisfied with the Commission’s response, the applicant appealed its decision to the Board which concluded that he and his spouse were separately entitled to 35 weeks of parental benefits under the Act .

The Board began by stating the question it had to determine, namely, whether the applicant was disqualified for parental benefits for the care of the children because his spouse had already qualified for benefits for their care. The Board determined that the effect of paragraph 12(4) (

b) of the Act was to limit a claimant to 35 weeks of benefits for the care of a child resulting from a single pregnancy, adding that “this subsection allows for a claim for each pregnancy, and not limited to only one pregnancy.” [ 10 ] However, in the Board’s view, the combined effect of subsections 12(1) and 12(4) with paragraph 12(3) (

b) of the Act was that each claimant, i.e. the applicant and his spouse, could make a claim under paragraph 12(3) (

b) because a benefit period had been established for each of them and that subsection 12(4) could not be read without reading in the word “to a claimant” at the end of the introductory sentence of the subsection. Consequently, the applicant could claim 35 weeks of parental benefits for one child and his spouse could claim 35 weeks for the other child. Thus, in the Board’s view, “the parents’ claims are limited to 35 weeks per claimant per child.

Two claimants making separate claims for separate child[ sic ] are entitled to make separate 35 week claims.” [ 11 ] The Board’s decision led to the Commission’s appeal before the Umpire, whose decision is now before us in this judicial review application. The Umpire’s Decision [ 12 ] The first issue which the Umpire addressed in his reasons was the

interpretation of the Act . He began by highlighting the differing

interpretations of the Act on which the respective positions of the parties depended, namely: in the case of the respondent, that the Act allowed 35 weeks of parental leave for each pregnancy, irrespective of the number of children resulting from that pregnancy; and, in the case of the applicant, that the Act allowed 35 weeks of parental leave for each child born of a pregnancy, with each parent entitled to a maximum of 35 weeks. [ 13 ] The Umpire then stated that the applicant’s

interpretation was based on subsection 12(3) of the Act , whereas that of the respondent found its support in subsection 12(4) . After reproducing both subsections, the Umpire opined that subsection 12(4) clearly supported the respondent’s position that the maximum number of weeks of parental benefits allowable was 35 weeks, whether one or more children were born of a single pregnancy.

In so concluding, the Umpire stated that he could not agree with the applicant’s submission that it was implicit in subsection 12(4) that its purpose was to limit to 35 weeks the benefits payable to a claimant and that, hence, it did not constitute a cap on the benefits payable, irrespective of the number of claimants. In his view, the

interpretation proposed by the applicant, which the Board had accepted, would require him to rewrite subsection 12(4) by adding the words “to a claimant” so that the introductory words of the subsection would read as follows: “The maximum number of weeks for which benefits may be paid to a claimant ”. [ 14 ] As an additional reason for being unable to agree with the applicant’s

interpretation, the Umpire indicated that such an

interpretation would also allow the parents of a single child to each take 35 weeks of parental leave. Thus, in the Umpire’s view: “The 35-week maximum clearly intended to apply to a single child would be eliminated given that subsection 12(4) would apply to a claimant, i.e . to each claimant individually. Thus, each parent of a single child would be entitled to 35 weeks” (Umpire’s decision, page 4). [ 15 ] In the Umpire’s view, the Act could only be read as saying that each pregnancy gave rise to 35 weeks of parental benefits.

The words “for the care of one or more new-born or adopted children as a result of a single pregnancy or placement”, found in subsection 12(4) , did not leave any doubt on the issue. The Umpire’s reasoning on this point appears, at page 5 of his decision, where he states: Contrary to the respondent’s position, what the Act really says is that every pregnancy is worth 35 weeks. The words one or more new- born or adopted children as a result of a single pregnancy (emphasis added) make this clear. If paragraph 12(4)(

b) was intended to simply limit the benefits payable for each child to 35 weeks, it would read for the care of a new-born or adopted child is 35. While the pros and cons of the policy choice to grant the same amount of benefits to parents of one or more children may be debated, this is a debate properly left to Parliament. As a matter of statutory

interpretation, the provisions of the Act are clear, and this cannot be changed by arguments relating to the additional burdens that may face the parents of twins.

[16] The Umpire then stated his disagreement with the applicant’s submission that subsection 12(4) was there to make clear that the35 weeks of parental care were available for every new pregnancy and not only once in a claimant’s life.

Rather, in his opinion, thelimitation of 35 weeks of parental care made available by subsection 12(3) was available for each benefit period and, thus, available for asubsequent pregnancy upon establishment of a new benefit period. [17] The Umpire concluded that part of his decision, at page 5, by stating that the applicant was not entitled to receive parentalbenefits for the children born in April 2009 because his spouse had applied for 35 weeks of parental benefits, which application theCommission had approved, and that the applicant had consented to her receiving these benefits.

Consequently, in the Umpire’s view, theBoard had wrongly interpreted the relevant provisions of the Act and its decision had to be set aside. [18] The Umpire then turned to the question of whether the Board had jurisdiction to deal with the applicant’s Charter arguments. Inhis view, the matter had already been settled by the Supreme Court of Canada in Tétreault-Gadoury v.

Canada (Employment andImmigration Commission), (SCC), [1991] 2 S.C.R. 22 (Tétreault-Gadoury), where the Court held that the Umpire andnot the Board had jurisdiction to determine whether sections of the Unemployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48],infringed upon the Charter and that he was bound to follow that decision. Further, he rejected the applicant’s submission that theSupreme Court had reversed Tétreault-Gadoury in its recent decision of R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 (Conway).

Heexpressed his view as follows, at page 8 of his decision: Further, given that the Supreme Court in R v Conway expressly referred to its previous decision in Tétreault-Gadoury, had it intended toreverse its finding there, it would have done so more clearly, even though the Act was not at issue in Conway. It did not, instead choosingto refer to the consolidation and merger of the existing law; in my view, [sic] is further evidence that the finding in Tétreault-Gadourywas not reversed.

Moreover, the exercise in discerning legislative intent undertaken in Tétreault-Gadoury is not implicitly overruled bythe principles articulated in Conway. There is nothing inconsistent between the Board not having jurisdiction to decide questions of lawand the institutional inquiry into Charter jurisdiction provided for in Conway. [19] The Umpire then turned to the applicant’s Charter arguments and, more particularly, that subsection 2(1) and sections 7, 8, 12and 23 of the Act infringed subsection 15(1) of the Charter. [20] First, the Umpire reviewed the Supreme Court’s decisions in Andrews v.

Law Society of British Columbia, (SCC),[1989] 1 S.C.R. 143 (Andrews); Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R.497 (Law); and R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 (Kapp). More particularly, he drew attention to the Supreme Court’sdecision in Kapp, where the Court set out the applicable test for

section 15 inquiries: i.e. whether the law created a distinction based onan enumerated or analogous ground, and whether the distinction created a disadvantage by perpetuating prejudice or stereotyping. [21] The Umpire then discussed the first part of the Kapp test. His examination of the relevant facts in the light of the SupremeCourt’s decisions in Law; Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203;Andrews; Delisle v. Canada (Deputy Attorney General), (SCC), [1999] 2 S.C.R. 989; Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418; and Withler v.

Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 (Withler), led him toconclude that “[b]eing the parent of twins is an immutable personal characteristic; this appears to be sufficient to establish this status asan analogous ground of discrimination” (Umpire’s decision, page 10). [22] He then turned his attention to whether a distinction had been made on the basis of the applicant’s immutable personalcharacteristic. He answered that question by concluding that the scheme of the Act drew a distinction between the parents of twins andother parents.

He reasoned as follows, at page 13: Here, by assigning benefits based on a single pregnancy, the scheme fails to take into account the true characteristics of the parents oftwins because their single pregnancy results in double the number of children without any increase in benefits. This, in effect, is adistinction. [23] He then addressed the second part of the Kapp test, and asked himself whether the distinction created a disadvantage byperpetuating prejudice or stereotyping.

The Umpire concluded that it did not. [24] In reaching that conclusion, the Umpire analysed the four contextual factors which the Supreme Court in Law and Kapp set forthas aids to determine whether the distinction created a disadvantage which perpetuated prejudice or stereotyping, namely: (

a) pre-existingdisadvantage of the claimant; (

b) the needs, capacities and circumstances of the claimant and other groups; (

c) whether the benefit has anameliorative effect for a more disadvantaged group; and (

d) the nature of the interest affected. [25] With regard to the first contextual factor, the pre-existing disadvantage of the claimant, the applicant argued that there wasstrong evidence that treating the birth of twins and the birth of a single child identically for the purposes of parental benefits perpetuateda distinction and disadvantage. The Umpire disagreed with this submission.

In his view, although parental benefits constituted arecognition that children require a period of care following their birth, the purpose of the Act was to provide temporary partial incomereplacement to a claimant when there was an interruption of earnings due to the birth or placement of a child, adding that what wasinsured were the earnings of a claimant, and that it was the parents who received the benefits, not the child or children. [26] The Umpire noted that the scheme of the Act did not consider the burden or difficulty of a particular birth, in that it allowed aclaimant a number of weeks of benefits, irrespective of “the amount of care a child or children will require” (Umpire’s decision, page14).

In other words, the Umpire was satisfied that the Act sought to address the need felt by parents to stay at home with a child orchildren after the birth by providing them with benefits to compensate an interruption of earnings while they cared for their children. Atpage 14 of his decision, the Umpire stated: There is no evidence that parents of twins are subject to unfair treatment in society by virtue of the fact that they are parents of twins orthat they are not given equal concern, consideration or respect.

The fact that caring for twins may involve more work than caring for asingle newborn does not prove historical disadvantage that perpetuates prejudice and stereotyping. There is certainly no evidence, in thecontext of the Act, that parents of twins have experienced historical disadvantage, stereotyping, vulnerability or prejudice caused by their

being parents of twins. [ 27 ] The Umpire then turned to the second Kapp factor, i.e . the correspondence between the grounds and the claimant’s actual needs, capacity or circumstances. First, he stated that the main issue which had to be determined was whether the Act took into account the particular situation of those affected and, if it did, then it was less likely to rest on a stereotype. [ 28 ] In his discussion, the Umpire examined subsections 23(4) and 23(5) of the Act , and noted that there was sufficient flexibility in the Act to address the needs and circumstances of most claimants.

In particular, he pointed to the fact that under subsection 23(4) , parents could divide the weeks of parental benefits, as long as the 35-weeks per single pregnancy were not exceeded. The Umpire added that, similarly to the situation in Canada (Attorney General) v.

Lesiuk , 2003 FCA 3 , [2003] 2 F.C. 697, leave to appeal to the Supreme Court of Canada dismissed, [2003] 2 S.C.R. viii, the matter before him was not one where an entire group or a significant portion of a group had been excluded from benefits, but rather, “that some claimants should receive more benefits than others by virtue of the fact that they are parents of twins” (Umpire’s decision, page 15). [ 29 ] In the Umpire’s view, considering the various circumstances that could arise in different families, it was not possible to devise a system of parental benefits whereby the needs of every family would be met.

In his view, however, “[t]he flexibility inherent in the Act does accommodate, to some extent, the needs of parents of children who impose a relatively greater burden than other children, even though the scheme is not precisely attuned to Mr. [Martin’s] situation” (Umpire’s decision, page 15). [ 30 ] As a result, the Umpire was of the view that the second factor was neutral in the circumstances. [ 31 ] With regard to the third Kapp factor, i.e. the ameliorative purpose or effects of the law or program, the Umpire was of the view that that factor was not relevant since the crux of the applicant’s submission was that his group, parents of twins, was disadvantaged relative to others, and that there was “no other more relatively disadvantaged group that the Act targets” (Umpire’s decision, page 15). [ 32 ] Finally, the Umpire turned to the nature of the interest affected, the last contextual factor, and referred to the Supreme Court’s decision in Granovsky v.

Canada (Minister of Employment and Immigration) , 2000 SCC 28 , [2000] 1 S.C.R. 703 ( Granovsky ), where the Court indicated that the real question was not whether a claimant had been deprived of a financial benefit, but whether the deprivation promoted the view that persons with temporary disabilities are “‘less capable, or less worthy of recognition or value as human beings or, as members of Canadian society , equally deserving of concern, respect and consideration’” [emphasis in original] ( Granovsky , paragraph 58 ). [ 33 ] This led the Umpire to state that the only interest affected in the present matter was of an economic nature, adding that the applicant had not succeeded in showing that the denial of benefits “has affected his access to fundamental institutions or a basic aspect of his full membership in Canadian society” (Umpire’s decision, page 15).

Consequently, the applicant’s economic interests did not result in discrimination. The Umpire’s rationale appears at page 15 of his decision, where he states: The real issue in this case is the fact that the Act does not entitle Mr. Martin and his spouse to receive twice as many weeks of parental benefits as the parents of a single child. Contrary to what he submits, he was not excluded from the parental benefits scheme. Rather, he simply chose not to avail himself of the parental benefits so that his spouse could receive the maximum amount of benefits available.

I find that the denial of an additional 35 weeks of parental benefits does not result in a denial of access to a fundamental social institution nor does it constitute a complete non-recognition of a group. [ 34 ] In considering the above four factors, the Umpire pointed out that he had kept in mind the Supreme Court’s admonition in Kapp that the contextual factors were not to be rigidly applied as they were simply aids useful in determining whether a distinction resulted in discrimination.

Whether one approached the matter from the perspective of a demeaning of dignity, as in Law , or whether one approached the issue, as in Andrews and Kapp , by determining whether the distinction created a disadvantage through the perpetuation of prejudice or stereotyping, there could be no doubt, in the Umpire’s opinion, “that discrimination necessarily entails some offence to the way a group is treated in society. Courts must determine whether a distinction impairs the substantive equality

section 15 protects” (Umpire’s decision, page 15). [ 35 ] The Umpire then stated his view that the applicant had not shown that the Act and the scheme contained therein offended the Charter ’s promise of substantive equality. He explained his position as follows, at page 16: The employment insurance scheme does not fail to recognize the concern, respect and consideration due to the parents of twins as members of Canadian society.

Although Mr. [Martin] has presented evidence of the burdens occasioned by the birth of his children, the fact that the Act does not grant his family double benefits falls short of demonstrating that the scheme suggests he is less worthy of respect. The importance of context, recognized as a core part of the

section 15 analysis at para. 43 of Withler , cannot be overstated here. Mr. [Martin] has failed to demonstrate that the parents of twins have faced or do face historical disadvantage, prejudice or stereotyping in Canadian society. Looking to other factors, the financial interest affected here does not impair Mr. [Martin’s] full participation in all fundamental aspects of Canadian society, and the benefits to which the [Martin-Critchley] family are entitled, although not precisely corresponding to their enhanced needs as parents of twins, do include them to a significant extent in the employment benefit scheme.

From the perspective of a reasonable person in Mr. [Martin’s] position, and considering all of the factors discussed above, it simply cannot be said that the employment insurance scheme perpetuates prejudice and stereotyping. [ 36 ] The Umpire then went on to emphasize that not every distinction in treatment at law amounted to a violation of

section 15. He reasoned as follows, at page 16 of his decision: The classifying of individuals and groups, the implementation of different provisions respecting such groups, and the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society.

The Supreme Court and the Federal Court of Appeal have held that complex social benefits programs, such as the employment insurance program, often make distinctions in order to deliver these programs properly, and that Parliament must be accorded some flexibility in the extension of social benefits. It is entirely legitimate for the government to make choices in the allocation of benefits and it should be permitted a degree of latitude in so doing, as it is an exercise which is almost bound to seem arbitrary to those falling on the wrong side

of the line. [Citations omitted] [ 37 ] Finally, relying on the Supreme Court’s decision in Withler , the Umpire pointed out that policy considerations could be a relevant factor in regard to the second part of the Kapp test, noting that the parental benefits allowed by the Act were not needs-based, in that the benefits were not the mirror reflection of the burden or difficulties imposed upon parents by a child’s birth.

The Umpire then added that the scheme put forward by Parliament was subject to the usual financial constraints faced by all government programs, and that the fact that the Act did not grant greater benefits to the parents of twins did not amount to a failure by Parliament to recognize the additional burden imposed upon parents of twins or triplets, since the Act was blind or neutral to the different burdens imposed by the birth of a child or children. [ 38 ] The Umpire concluded his reasoning as follows, at page 17: The policy of the Act is to grant a set amount of parental leave benefits after birth regardless of need or burden imposed.

As such, it cannot reasonably be construed as making any suggestion as to the concern, respect and consideration that the parents of twins deserve. Relevant Legislation [ 39 ] The relevant provisions of the Act and of the Employment Insurance Regulations , SOR/96-332 (Regulations), read as follows: The Act Benefits 12.

(1) If a benefit period has been established for a claimant, benefits may be paid to the claimant for each week of unemployment that falls in the benefit period, subject to the maximums established by this section. General maximum

(2) The maximum number of weeks for which benefits may be paid in a benefit period because of a reason other than those mentioned in subsection (3) shall be determined in accordance with the table in

Schedule I by reference to the regional rate of unemployment that applies to the claimant and the number of hours of insurable employment of the claimant in their qualifying period. Maximum — special benefits

(3) The maximum number of weeks for which benefits may be paid in a benefit period (

a) because of pregnancy is 15; (

b) because the claimant is caring for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption is 35; (

c) because of a prescribed illness, injury or quarantine is 15; and (

d) because the claimant is providing care or support to one or more family members described in subsection 23.1(2), is six. Maximum — special benefits

(4) The maximum number of weeks for which benefits may be paid (

a) for a single pregnancy is 15; and (

b) for the care of one or more new-born or adopted children as a result of a single pregnancy or placement is 35. Maximum — parental benefits

(4.01) If a claim is made under this

Part in respect of a child or children referred to in paragraph (4)(

b) and a claim is made under

section 152.05 in respect of the same child or children, the maximum number of weeks of benefits payable under this Act in respect of the child or children is 35. … Adoption

(8) For the purposes of this section, the placement with a major attachment claimant, at the same or substantially the same time, of two or more children for the purpose of adoption is a single placement of a child or children for the purpose of adoption. … Parental benefits 23.

(1) Notwithstanding

section 18, but subject to this section, benefits are payable to a major attachment claimant to care for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption under the laws governing adoption in the province in which the claimant resides. Weeks for which benefits may be paid

(2) Subject to

section 12 , benefits under this

section are payable for each week of unemployment in the period (

a) that begins with the week in which the child or children of the claimant are born or the child or children are actually placed with the claimant for the purpose of adoption; and (

b) that ends 52 weeks after the week in which the child or children of the claimant are born or the child or children are actually placed with the claimant for the purpose of adoption. … Division of weeks of benefits

(4) If two major attachment claimants are caring for a child referred to in subsection (1), or one major attachment claimant and an individual who claims benefits under

section 152.05 are both caring for a child referred to in that subsection, weeks of benefits payable under this section, under

section 152.05 or under both those sections, up to a maximum of 35 weeks, may be divided between them.

Maximum number of weeks that can be divided

(4.1) For greater certainty, if, in respect of the same child, a major attachment claimant makes a claim for benefits under this

section and another person makes a claim for benefits under

section 152.05 , the total number of weeks of benefits payable under this

section and

section 152.05 that may be divided between them may not exceed 35 weeks. … Parental benefits 152.05

(1) Subject to this Part, benefits are payable to a self-employed person to care for one or more new-born children of the person or one or more children placed with the person for the purpose of adoption under the laws governing adoption in the province in which the person resides. … Exception

(15) If a self-employed person makes a claim under this Part and another person makes a claim under

section 22 or 23 in respect of the same child or children and one of them has served or elected to serve their waiting period, then (

a) if the self-employed person is not the one who served or elected to serve the waiting period, the self-employed person is not required to serve a waiting period; or (

b) if the person making the claim under

section 22 or 23 is not the one who served or elected to serve the waiting period, the person may have his or her waiting period deferred in accordance with

section 23. … Benefits under this Part and

Part I 152.09

(1) If an individual qualifies for benefits under this Part as a self-employed person and for benefits under

Part I as an insured person, the individual may receive benefits under one Part only and, to do so, the individual must, in the prescribed manner, at the time of making an initial claim for benefits, elect under which Part benefits are to be paid. Effect of election

(2) The election is binding on the individual in respect of the initial claim for all benefits payable, for any of the following reasons, during the benefit period established in relation to the initial claim: (

a) pregnancy; (

b) caring for one or more new-born children of the self-employed person, or one or more children placed with the self- employed person for the purpose of adoption; (

c) a prescribed illness, injury or quarantine; and (

d) providing care or support to one or more family members. The Regulations 76.21 (1) Subsection (2) applies in respect of two persons who are caring for the same child or children and who do not reside in the same province at the time the first one of them makes an application under

section 22 or 23 of the Act or an application for provincial benefits.

(2) Subject to subsection (3), where one of the two persons referred to in subsection (1) has applied for and is entitled to receive benefits under

section 23 of the Act (referred to in this

section as “the claimant”) and the other person has applied for and is entitled to receive provincial benefits (referred to in this

section as “the provincial applicant”), unless they have entered into an agreement as to the number of weeks of such benefits they will each respectively apply for or there is a court order respecting the sharing of those weeks of benefits, (

a) if the number of weeks of benefits that the claimant would otherwise be entitled to receive under

section 23 of the Act is an even number, the number of weeks of benefits payable to the claimant is half that number; and (

b) if that number is an odd number, (

i) where the claimant made the earlier application, one week of those benefits plus half of the remaining weeks of benefits is payable to the claimant, and (ii) where the provincial applicant made the earlier application, half the number of weeks of benefits remaining, after deducting one week, are payable to the claimant.

(3) The maximum number of weeks of benefits that may be paid to the claimant under

section 23 of the Act shall not be greater than the maximum number of weeks for which benefits may be paid under paragraph 12(3) (

b) of the Act, less the number of weeks of provincial benefits that are paid to the provincial applicant, taking into account any weeks of provincial benefits that are paid at the accelerated rate referred to in subsection 76.19(2), if applicable. The Issues [ 40 ] This application for judicial review raises the following issues: 1. Whether the Umpire erred in concluding that the Act did not allow each parent of twins to receive 35 weeks of parental benefits. 2. Whether the Umpire was correct in determining that the Board did not have jurisdiction to decide Charter issues. 3.

Whether the Umpire erred in determining that the parental benefit provisions of the Act did not infringe subsection 15(1) of the Charter . 4. If the Umpire erred in determining that the parental benefit provisions of the Act did not infringe subsection 15(1) of the Charter ,

whether the infringement was a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic societyunder

section 1 of the Charter. Analysis [41] Before addressing the first issue, a few words concerning the applicable standard of review are in order. [42] First, the parties are in agreement that with regard to Charter issues, the applicable standard is that of correctness and that thesame standard applies to the question of whether the Board had jurisdiction to decide Charter issues. I see no reason to disagree with theposition taken by the parties [43] Second, with respect to the

interpretation of the Act, the applicant submits that the issues are issues of law which are reviewableon a standard of correctness. In its memorandum, the respondent, on the basis of the Supreme Court’s recent decisions in Canada(Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, and Alberta (Information andPrivacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, asserted that the applicable standard wasthat of reasonableness.

However, prior to the hearing of the application, the applicant, in view of this Court’s decision in Chaulk v.Canada (Attorney General), 2012 FCA 190, [2013] CLLC 240-002, abandoned the position taken in its memorandum and conceded thatthe standard of review to be applied by this Court to the Umpire’s

interpretation of the provisions at issue is that of correctness. [44] I now turn to the first issue. A. The First Issue: Whether the Umpire erred in concluding that the Act did not allow each parent of twins to receive 35 weeks ofparental benefits. [45] The applicant submits that the Umpire erred in adopting a wrong approach to the

interpretation of the provisions at issue. Moreparticularly, the applicant says that the judge read paragraph 12(4)(

b) of the Act out of context and without resort to proper principles ofinterpretation, i.e. without taking into account the entirety of the Act and the purpose thereof. In support of his view, the applicant refersus to Sullivan on the Construction of Statutes, 5th ed. [Markham, Ont.: LexisNexis, 2008], at page 1, where the learned author says: Today there is only one principled approach, namely, the words of

an Act are to be read in their entire context, in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [Footnote omitted.] The applicant also refers us to the Supreme Court of Canada’s decision in Rizzo & Rizzo Shoes Ltd.(Re), (SCC), [1998]1 S.C.R. 27, at paragraphs 20–23, where the Court adopted the above principle and further relied on

section 10 of the

Interpretation Act,R.S.C., 1985, c. I-21, which provides that every statute should be given a fair, large and liberal construction so as to ensure “theattainment of the object of the Act according to its true intent, meaning and spirit”. [46] As a consequence of his criticism of the Umpire’s approach to the

interpretation of the provisions at issue, the applicant says thata proper

interpretation of the Act leads to the conclusion that he and his spouse are entitled to two parental leaves. First, the applicantsets out the underlying premise to his proposed

interpretation, namely, that his

interpretation is in accord with the Act’s purpose thatrecognizes legitimate interruptions of employment to care for children, in that it allows two eligible claimants who both interrupted theiremployment to care for their children to receive the same benefit as other dual-eligible claimants caring for two or more children and, indoing so, promotes the needs of children, one of the key reasons for the existence of the parental leave benefits. The applicant furtherstates that in ensuring that one child results in one parental leave claim and two or more children always results in two claims, hisinterpretation leads to a clear, consistent

interpretation of the Act and best fulfills the purpose of parental leave, adding that contrary tothe

interpretation accepted by the Umpire, it gives effect to the whole of

section 12 and

Part I [sections. 6 to 55] of the Act. [47] I now turn to the applicant’s specific views on the

interpretation of the provisions at issue. He begins by making the point thatparagraph 12(4)(

b) of the Act is “a small piece of a much larger and complex benefits scheme” (applicant’s memorandum, paragraph32). First, he states that sections 6 to 11 establish the pre-conditions to the making of a parental leave claim, i.e. working the requirednumber of hours necessary to pay a sufficient amount of premiums during a qualifying period of approximately one year prior to aninterruption of earnings.

Once these conditions have been met, the applicant says that the Act establishes two overlapping but differentperiods during which parental benefits may be paid to a claimant, the first period being the 52–73-week benefit period found in sections9 and 10 of the Act. The second period, which the applicant characterizes as being “a more amorphous period” (applicant’smemorandum, paragraph 35), is that which is found at subsection 23(2) and entitled “Weeks for which benefits may be paid”.

Accordingto the applicant, this period can differ from the first period as the start and length thereof is triggered by a number of factors, includingthe hospitalization of a child or a parent’s service in the armed forces. [48] This leads the applicant to assert that

section 12, which sets out the benefits payable, begins to make sense when it is read withthe two above distinct time periods in mind. More particularly, the applicant says that

section 12 should be read as providing a 35-weekmaximum benefit period to a claimant rather than in respect of a single pregnancy, adding that the purpose of paragraph 12(3)(

b) is tolimit a claimant to 35 weeks of parental benefits in his benefit period, while paragraph 12(4)(

b) serves to limit a claimant to 35 weeks ofbenefits in a period during which parental benefits may be paid. [49] The applicant then goes on to assert that since he and his wife are eligible claimants in their own right, each of them isindividually subject to the maximums set out in subsections 12(3) and 12(4), which means that each of them has a 35-week claimmaximum. The applicant says that “[t]wo claimants means two (2) claims, each with a maximum of 35 weeks” (applicant’smemorandum, paragraph 39). Thus, in the applicant’s view, reading the 35-week benefits maximums in subsections 12(3) and 12(4) as“claimant-centered” is consistent with the whole of

section 12. According to the applicant, it necessarily follows that adding “the wordsof s. 12(1) right before those in sub-ss. 12(3) and 12(4) [which was clearly intended], the fact that sub-ss. 12(3) and 12(4) create ‘perclaimant’ maximums becomes apparent” (applicant’s memorandum, paragraph 41). [50] The applicant further says that the

interpretation that he is putting forward is consistent with the purpose and object of the Actand its parental benefits provisions. More particularly, he says that in considering the benefits maximums set out in subsections 12(3)

and 12(4) as amounts payable per claimant, his

interpretation is consistent with the claimant-focus purpose of providing claimants with amounts to supplement the incomes lost due to their interruption in earnings and that it is also consistent with the social purpose of the Act inherent in supplementing a claimant’s income when he or she interrupts work to care for children. [ 51 ] The applicant makes the further point that the Umpire’s

interpretation of the Act “rises to the level of an absurdity” in that it results in only one parental leave being granted if two or more children are born from a single pregnancy, but two parental leaves being granted if there are two pregnancies or a pregnancy and an adoption. The applicant adds that Parliament cannot have created a singleton maximum in paragraph 12(4) (

b) when it expressly addressed that situation in subsection 23(4) . The applicant completes his reasoning by saying that the Umpire’s determination that paragraph 12(4) (

b) was intended to limit dual claimants to a single 35-week claim for a single child has the effect of assigning to paragraph 12(4) (

b) a limitation already spelled out in subsections 23(4) and 23(4.1), adding that it cannot be assumed that Parliament created a singleton maximum in paragraph 12(4) (

b) when it expressly addressed that situation in subsection 23(4) . [ 52 ] The applicant concludes his submissions on this issue by saying, at paragraph 58 of his memorandum: Instead of this tautologous

interpretation [the Umpire’s

interpretation], the Applicant’s

interpretation assigns meaning to s. 12(1) (the sub-ss. 12(3) and 12(4) maximums are per claimant), additional meaning to s. 12(3) (maximums per “benefit period”), additional meaning to s. 12(4) (maximums during the different s. 23 period post-birth when a parental leave claim can be made), and meaning to sub-ss. 23(4) and 23(4.1) (one shared 35 weeks leave claim where a singleton is born). [ 53 ] In my view, the

interpretation proposed by the applicant cannot be right as it flies in the face of Parliament’s clear intention in enacting the provisions at issue. I cannot see any basis to conclude that the Umpire’s

interpretation results from an error on his part. The Umpire’s decision is the correct

interpretation of the Act . I so conclude for the following reasons. [ 54 ] I begin with an examination of sections 12 and 23 of the Act which are at the heart of these proceedings. [ 55 ] Subsection 12(1) provides that benefits shall be payable to a claimant for each week of unemployment falling within a benefit period that has been established for the claimant. The availability of the benefits is subject to the maximums established by

section 12. Of particular interest are the maximums set out in subsections 12(3) and 12(4) . [ 56 ] Paragraph 12(3)(

b) provides that the maximum number of weeks for which benefits may be paid to a claimant, in a benefit period, for the care of one or more newborn children is 35. As to paragraph 12(4) ( b ), it provides that the maximum number of weeks for which benefits may be paid for the care of one or more newborn children “as a result of a single pregnancy” is 35. [ 57 ] I understand these provisions to mean the following. First, a claimant may receive, during a benefit period, benefits for a maximum period of 35 weeks for the care of one or more newborn children ( paragraph 12(3) ( b )).

Benefit periods are established for an individual claimant and are thus claimant specific. Consequently, during that benefit period, paragraph 12(3) (

b) limits to one period of 35 weeks the benefits that a mother or father, as individual and separate claimants, can receive for the care of children. This limit, however, is subject to a further limit found in paragraph 12(4) ( b ). Were it not for this limit, the applicant and his spouse would each be entitled to 35 weeks of parental benefits to care for their twins. [ 58 ] Paragraph 12(4)(

b) restricts or limits the period in which parental benefits may be paid for the care of one or more newborn children. That restriction is a maximum of 35 weeks for the care of all children born of a single pregnancy. [ 59 ] I now turn to subsection 23(1) which provides that parental benefits will be available to major attachment claimants for the care of one or more newborn children of these claimants. [ 60 ] Subsection 23(2) provides that, subject to

section 12 of the Act , parental benefits payable under

section 23 shall be payable in the period that commences with the week in which a child or children are born and ends 52 weeks after that week. [ 61 ] Subsections 23(3) to 23(3.3) provide for exceptions to subsection 23(2) and provide for limited extensions of the 52-week period in which the parental benefits may be paid. [ 62 ] Subsection 23(4) is of greater relevance to these proceedings. It addresses the situation where two major attachment claimants “are caring for a child referred to in subsection (1)”, allowing them to divide between them up to 35 weeks for the care of their child or children, as the case may be. [ 63 ] My understanding of

section 23 is as follows. Benefits are available to a major attachment claimant to care for one or more newborn children and, where two major attachment claimants are caring for one or more newborn children of theirs, they may share up to 35 weeks of benefits which are to be divided between them. Thus, there can be no doubt that what the

section is saying is that two parents who interrupt work to care for one or more newborn children are entitled to a maximum of 35 weeks of benefits which they may divide howsoever they please. [ 64 ] When one reads sections 12 and 23 together, the only possible conclusion is that 35 weeks of parental benefits are available in respect of the child or children born of a single pregnancy.

In other words, irrespective of the number of children born of a single pregnancy and irrespective of the number of claimants seeking benefits as a result of that pregnancy, the maximum number of weeks available is 35. [ 65 ] The approach which I have taken here is the one taken by the Umpire. The applicant submits that this approach is unsatisfactory: the Umpire erred because he did not take into account the entirety of the Act and its purpose. In my view, that criticism is unfounded since the Umpire’s

interpretation is entirely consistent with the purpose of the parental benefits established by the Act and the nature of the employment scheme. [ 66 ] An interruption of earnings occurs when a claimant has a reduction of earnings by more than 40 percent because he or she ceases

to work, or reduces his or her work, to care for a child or children as described in subsection 23(1). Consequently, the purpose of the parental benefits is to compensate parents for the interruption of earnings which occurs when they cease to work or reduce their work to care for a child or children. The scheme is clearly not driven by the needs of the parents or the number of children resulting from a pregnancy. The purpose thereof is clearly to compensate parents for the interruption of their earnings resulting from their taking time off to care for a child or children.

Put another way, the Act provides to the parents temporary partial income replacement for 35 weeks. Other than the specific provisions of the Act which I have discussed hereinabove, there are other provisions of the Act which provide indicia that the Umpire arrived at the correct conclusion. [ 67 ] First, there is subsection 12(8) of the Act . That provision provides, in unequivocal terms, that the placement with a major attachment claimant of two or more children for the purpose of adoption constitutes a single placement of a child or children for the purpose of adoption.

In other words, the placement of two children with a claimant gives rise to a maximum benefit period of 35 weeks. Considering this clear enactment of Parliament’s intent, it would be odd to construe subsections 12(3) and 12(4) as allowing each parent of twins to claim 35 weeks while, at the same time, the adoption of two or more children at the same time is treated as one placement for the purposes of

section 12 . [ 68 ] Second,

section 76.21 of the Regulations also supports the Umpire’s

interpretation. It sets out the maximum number of weeks of parental benefits payable under the Act where one person claims parental benefits under the Act and a second person claims similar benefits under provincial law. In that case, the benefits payable under the Act are limited to 35 weeks less the number of weeks of provincial benefits payable to the other parent under provincial law. Failing an agreement between the parents, subsection 76.21(2) provides the mechanism by which their dispute will be settled. In any event, subsection 76.21(3) provides that the benefits payable to a claimant under

section 23 “shall not be greater than the maximum number of weeks for which benefits may be paid under paragraph 12(3) (

b) of the Act, less the number of weeks of provincial benefits that are paid to the provincial applicant [the other parent]”. [ 69 ] Consequently, the Act makes it clear that in the case of separate claims being made under different regimes, the number of weeks during which parental benefits may be paid for the care of a child or children cannot exceed 35 weeks per single pregnancy. [ 70 ] Finally, there is subsection 12(4.1) of the Act , which deals with claims for parental benefits for the care of a child or children made pursuant to sections 12 and 23, and a claim for the same child or children made pursuant to

section 152.05, which allows self- employed persons to receive benefits for the care of one or more newborn children of that person. Subsection 12(4.1) makes it clear that in such a situation, no more than 35 weeks of benefits are payable under the Act in respect of the care of a child or children. Like paragraph 12(4)(

b) of the Act, subsection 12(4.1) does not limit the maximum number of weeks payable “to a claimant”. Rather, like paragraph 12(4)( b ), the subsection must mean that the maximum limit of 35 weeks applies to situations where there is more than one claimant. [ 71 ] When one considers all of these provisions together, there is only one possible conclusion: where, as here, two parents/claimants interrupt their earnings to care for their child or children, they cannot jointly receive more than 35 weeks in respect of children born of a single pregnancy.

I am therefore of the opinion that the provisions at issue do not allow for the payment of 70 weeks of benefits in the case of twins. [ 72 ] Before concluding, I wish to address the applicant’s argument that the intention of Parliament in enacting subsections 12(3) and 12(4) was to restrict to 35 weeks the maximum number of weeks “payable to a claimant”. In other words, the applicant contends that paragraph 12(4) (

b) of the Act should read as follows: 12. … Maximum — special benefits

(4) The maximum number of weeks for which benefits may be paid TO A CLAIMANT … (

b) for the care of one or more new-born or adopted children as a result of a single pregnancy or placement is 35. [ 73 ] More particularly, as I indicated earlier, the applicant argues that the Act establishes two periods of benefits, i.e. a benefit period under sections 9 and 10 of the Act and an amorphous period under subsection 23(2) and submits that, when these provisions are read together,

section 12 can be read as allowing a 35-week benefits maximum to a claimant rather than in respect of a single pregnancy. The applicant further says that paragraph 12(3) (

b) is intended to limit the claimant to 35 weeks of parental benefits in his benefit period, whereas paragraph 12(4) (

b) is meant to limit a claimant to 35 weeks of benefits in a period during which parental benefits may be paid. [ 74 ] In my view, that approach is an erroneous one. [ 75 ] Although there can be no doubt that the benefit period established pursuant to sections 9 and 10 of the Act is specific to a claimant, the period in which parental benefits may be paid under subsection 23(2) is not. That period is tied to the birth of a child or children (see: subsection 23(2)).

Therefore, even though two claimants can make a claim for parental benefits for the care of one or more children and each claimant must separately establish his or her own benefit period, the parental benefits that will be paid can only be paid during the period set out in subsection 23(2), regardless of when a claimant’s benefit period commences and ends. [ 76 ] I also cannot subscribe to the applicant’s argument that a reading of subsection 12(1) makes the reading in of the words “to a claimant” inevitable in the reading of paragraph 12(4)( b ).

I agree entirely with the Umpire that one would have to rewrite the provision in total disregard of Parliament’s intention. In any event, subsections 12(4.1), 12(8) of the Act and

section 76.21 of the Regulations make it apparent that the applicant’s

interpretation cannot be right. In the end, what the applicant is asking us to do is to, in effect, amend the legislation to achieve the purpose which the applicant says Parliament intended, i.e. to ensure a particular level of care based on the number of children born of a single pregnancy and on the individual needs of parents in caring for these children. In any event, even accepting that there may be a debate as to the true purpose of the Act , the purpose of the Act cannot override or displace Parliament’s intent in enacting specific provisions of the Act. In Barrie Public Utilities v. Canadian Cable Television Assn. , 2003 SCC 28 , [2003] 1

S.C.R. 476, Gonthier J., writing for the majority of the Supreme Court, said at paragraph 42: The consideration of legislative objectives is one aspect of the modern approach to statutory

interpretation. Yet, courts and tribunals mustinvoke statements of legislative purpose to elucidate, not to frustrate, legislative intent. In my view, the CRTC relied on policy objectivesto set aside Parliament’s discernable intent as revealed by the plain meaning of s. 43(5), s. 43 generally and the Act as a whole. In effect,the CRTC treated these objectives in power-conferring provisions. This was a mistake. [77] I now turn to the second issue. B.

The Second Issue: Whether the Umpire was correct in determining that the Board did not have jurisdiction to decide Charterissues. [78] The Umpire held that the Board was correct in deciding that it had no jurisdiction to address the Charter issues raised by theapplicant. In his view, the matter had been settled by the Supreme Court in Tétreault-Gadoury and he was bound by that decision.

Hefurther rejected the applicant’s argument that the Supreme Court had reversed Tétreault-Gadoury in Conway. [79] The applicant argues, as he did before the Umpire, that Tétreault-Gadoury is no longer good law in view of the Supreme Court’srecent decisions and, in particular, that rendered in Nova Scotia (Worker’s Compensation Board) v. Martin; Nova Scotia (Workers’Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504 (Martin).

He says that in these cases, the Supreme Court “affirmedthe practical benefits of having the tribunal most familiar with the statute and that hears the evidence and prepares the Record provide itsviews on the statute’s constitutionality” (applicant’s memorandum, paragraph 68). [80] In support of his view, the applicant says that the Board does decide questions of law as it could not do its job otherwise, addingthat in Tétreault-Gadoury, the Supreme Court stated that there were practical considerations favouring the granting of Charterjurisdictions to the Board.

The applicant concludes by saying that since the Board has the power to determine questions of law, it has anobligation to consider his Charter arguments. [81] The respondent disagrees. He submits that Tétreault-Gadoury remains good law and that the Umpire was correct in finding thathe was bound by it.

The respondent reminds us that the Act expressly gives the Umpire, not the Board, the power to decide questions oflaw, adding that Parliament could have corrected Tétreault-Gadoury by amending the Act, had that been its intention. [82] Further, the respondent says the Supreme Court has continued, since Tétreault-Gadoury, to reaffirm the primacy of Parliament’sintention.

Although other tribunals operating under different statutory schemes may have Charter jurisdiction, that does not deter fromthe fact that in Tétreault-Gadoury, the Supreme Court clearly held that the Board did not have jurisdiction to decide Charter issues. [83] In my view, the respondent is right. The Supreme Court’s subsequent decisions have not expressly overturned Tétreault-Gadoury, even though clear opportunities to do so were given to it. I come to this view for the following reasons. 1.

The Law Pre-Conway [84] Before Conway, the courts applied different tests to consider the authority of administrative tribunals in relation to

section 52 ofthe Constitution Act [1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and subsection 24(1)of the Charter. As a result, I will focus on cases considering

section 52 and omit those that focus on subsection 24(1), e.g. Mills v. TheQueen, (SCC), [1986] 1 S.C.R. 863, in which it was decided that a judge sitting at a preliminary hearing is notconsidered a court of competent jurisdiction for the issuance of a stay under subsection 24(1) of the Charter. [85] The consideration of the

section 52 administrative tribunal cases begins with the “Cuddy Chicks trilogy” of Douglas/KwantlenFaculty Assn. v. Douglas College, (SCC), [1990] 3 S.C.R. 570 (Douglas College); Cuddy Chicks Ltd. v. Ontario(Labour Relations Board), (SCC), [1991] 2 S.C.R. 5 (Cuddy Chicks); and Tétreault-Gadoury. These cases addressed thequestion of whether or not the statute gave express power to the tribunal to consider questions of law. If the statute did not expresslygrant that power, an implicit reading was insufficient to extend authority to make

section 52 determinations. [86] The first case, Douglas College, considered whether a labour arbitrator, who had been appointed in accordance with the parties’collective agreement and whose actions were constrained by the framework of the Industrial Relations Act, R.S.B.C. 1979, c. 212, hadthe jurisdiction to consider the constitutionality of the collective agreement.

The Supreme Court extended jurisdiction to the arbitrator,finding that there were clear advantages to allowing a tribunal that was empowered to consider law to truly consider all of the law.La Forest J. noted that: “it would be anomalous if tribunals responsible for interpreting the law on the issue were unable to deal with theissue in its entirety, subject to judicial review” (page 599 of Douglas College, quoted in Conway, at paragraph 51).

There were additionaladvantages recognized in bringing forward the issue at first instance, in the context in which it arose—the tribunal—as opposed tohaving to resort to a time-consuming, expensive process in the superior court system. Moreover, the specialized expertise of the tribunaland its familiarity with the record were seen as useful in assessing constitutional questions. As La Forest J. explained: “specializedcompetence can be of invaluable assistance in constitutional

interpretation” (page 605 of Douglas College, quoted in Conway, atparagraph 51). [87] The next case, Cuddy Chicks, extended the authority to determine constitutional questions to the Ontario Labour RelationsBoard. The reasoning relied on cases in which labour boards had been found to have jurisdiction to consider questions relating to theirown jurisdiction.

As La Forest J. wrote, at page 19 of the decision: What these cases speak to is not only the fundamental nature of the Constitution, but also the legal competence of labour boards and thevalue of their expertise at the initial stages of complex constitutional deliberations. These practical considerations have compelled thecourts to recognize a power, albeit a carefully limited one, in labour tribunals to deal with constitutional issues involving their ownjurisdiction. Such considerations are as compelling in the case of Charter challenges to a tribunal’s enabling statute.

Therefore, to extendthis “limited but important role” of labour boards to the realm of the Charter is simply a natural progression of a well establishedprinciple.

[ 88 ] Finally, Tétreault-Gadoury considered the very question that is before us in this case, i.e . whether the Board was empowered by the Unemployment Insurance Act, 1971 to consider questions of law. Given that the Act did not mention that power in its

section on the Board, but did expressly provide that power to the Umpire, La Forest J. concluded that it did not have the authority to consider questions of law on the basis of the statutory

interpretation maxim expressio unius est exclusio alterius . He explained his view as follows, at page 33: The maxim expressio unius est exclusio alterius , like all general principles of statutory

interpretation, must be applied with caution. However, the power to interpret law is not one which the legislature has conferred lightly upon administrative tribunals, and with good reason. Although curial deference will not be extended to an administrative tribunal's holding on a Charter issue, such deference is generally applied to the

interpretation of a statute within the tribunal's area of expertise, when the tribunal has been given the power to interpret law. It is unlikely, therefore, that the failure to provide the Board of Referees with a power similar to that given to the Umpire was merely a legislative oversight. [ 89 ] La Forest J. also engaged with the idea that the right to answer questions of law was something that Parliament grants carefully and judiciously.

Absent express legislative intent, it was not appropriate to conclude that tribunals were empowered to engage with and pronounce upon questions of law. [ 90 ] Thus, the unifying theme in all three Cuddy Chicks cases was that express statutory jurisdiction to consider questions of law was required before a tribunal could begin engaging with a constitutional question. [ 91 ] The departure point from this principle occurred in Martin , where the Supreme Court again considered when an administrative tribunal had jurisdiction to consider the validity of a constitutional provision. In its view,

[…]