Martin v. Canada (Attorney General), 2013 FCA 15 (2013)

Parts:Martin v. Canada (Attorney General)
Reporting Judge:NADON J.A.
Docket Number:A-243-11
 
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Federal Court of Appeal - Martin v. Canada (Attorney General) [Anonymoused]

Source: http://decisions.fca-caf.gc.ca/en/2013/2013fca15/2013fca15.html

Date: 20130124

Docket: A-243-11

Citation: 2013 FCA 15

CORAM: NADON J.A.

DAWSON J.A.

STRATAS J.A.

BETWEEN:

CHRISTIAN MARTIN

Applicant and

ATTORNEY GENERAL OF CANADA

Respondent

Heard at Toronto, Ontario, on September 18, 2012.

Judgment delivered at Ottawa, Ontario, on January 24, 2013.

REASONS FOR JUDGMENT BY: NADON J.A.

CONCURRED IN BY: DAWSON J.A.

STRATAS J.A.

Date: 20130124

Docket: A-243-11

Citation: 2013 FCA 15

CORAM: NADON J.A.

DAWSON J.A.

STRATAS J.A.

BETWEEN:

CHRISTIAN MARTIN

Applicant and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT

NADON J.A.

[1] In April 2009, Paula Critchley, the applicant’s spouse, gave birth to twin girls. The issue underlying the questions which we must answer in this proceeding is whether the applicant and his spouse are both entitled to 35 weeks of parental benefits under the 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), CUB 76899, dated May 31, 2011, which allowed the Canada Employment Insurance Commission’s (“the Commission”) 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 . More particularly, the Board was of the view 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. In so concluding, the Board reversed the Commission’s determination that the applicant was not entitled to 35 weeks of parental benefits. On May 29, 2009, the Commission had written to the applicant 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. Your children’s mother has applied for the 35 weeks of parental [benefits] and you have stated that you are agreeable to her being paid these benefits. 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 to twins. 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 in denying 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 (“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 children 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 8).

[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 9 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...

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