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Charter - s.15 Discrimination - Step One 'Disproportionate Impact'. Chalifour-Racine v. Canada (Attorney General)
In Chalifour-Racine v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal allows a Charter s.15 ['discrimination'] JR, this brought against a ruling by the Appeal Division of the Social Security Tribunal supporting provisions of the EI Act which require that claimants "are not entitled to receive some or all of the regular employment insurance (EI) benefits that they otherwise would have been entitled to receive when they lose their employment shortly before, during, or shortly following their maternity and parental leaves".
Here the court considers the first step of the s.15 discrimination test ('disproportionate impact') on the case facts:[112] .... this case is much more like Fraser, Kanyinda, and Brooks. As in those cases, the impugned provisions are facially neutral but operate in a manner that disproportionately disadvantages a subset of women because of pregnancy and motherhood. The question is therefore not whether the provisions apply equally to all claimants. Rather, the question is whether, in their practical operation, they deny a benefit in a way that disproportionately affects a group protected by section 15 of the Charter.
[113] I see no error in the conclusion of both the General and Appeal Divisions that the impugned provisions in their effect create a distinction based on sex. A reading of the impugned provisions establishes that they operate so as to deny full regular job loss benefits to those who have taken, are taking, or will take maternity and parental leave, receive maternity and parental benefits, and who lose their employment before they are able to return to work and work the requisite number of hours to found a new qualifying period. And, Dr. Rose’s report establishes that these provisions impact women disproportionately, as only birth mothers may receive maternity leave benefits and far more women than men take parental leave and receive parental benefits.
[114] As the respondent contends, there was no data available to show the exact number of women who have taken, are taking, or will take maternity and parental leave, receive maternity and parental benefits, but who lose their employment before they are able to return to work and work the requisite number of hours to found a new qualifying period. Despite this, from other data Dr. Rose was able to determine that the 50-week cap unequivocally impacts more female than male claimants who claim regular job loss benefits for the reasons set out in her Report. I find that there is no reason to question this conclusion, which, indeed, was not challenged by the respondent before the General Division.
[115] Dr. Rose’s determination that the 50-week cap in subsection 12(6) of the EI Act affects more women than men was premised on several facts she drew from the sources she analyzed. That data revealed that 28% of female applicants combine types of benefits whereas only 9.8% of male applicants do so. In addition, the data demonstrated that many more women than men combine maternity and parental benefits and therefore more women than men would reach the 50-week threshold by reason of this combination. Further, the data showed that outside Quebec, women on average received 47.2 weeks of combined maternity and parental benefits in the last year for which data was available whereas in Quebec, new mothers received on average 45.3 weeks of benefits. In addition, over half the women who received maternity and parental benefits received 50 weeks of benefits. Further, many women who were pregnant obtained sickness benefits due to pregnancy-related complications, which also would have brought them nearer to the 50-week threshold, when combined with maternity and parental benefits. On the other hand, men most frequently combine sickness, paternity or lesser amounts of parental benefits with regular benefits. Given the lower amount of these benefits, men would much more infrequently reach the 50-week threshold so as to be disentitled from receiving regular benefits. From the foregoing facts, there is no reason to question Dr. Rose’s conclusion that it is unequivocal that subsection 12(6) of the EI Act impacts more women than men.
[116] In many ways, the first step of the analysis under section 15 of the Charter resembles the analysis undertaken in an adverse impact discrimination case under human rights legislation in determining whether a prima facie case of discrimination has been established. To establish a prima facie case of discrimination in an adverse impact human rights claim, a claimant must show that they have a characteristic protected from discrimination under human rights legislation, that a facially neutral rule or provision has the effect of adversely impacting the protected group to which the claimant belongs, and that the protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 [Moore] at paras. 33, 61–62; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789 [Bombardier] at paras. 1, 35–36; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 [BCGSEU] at para. 19; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [Motor Vehicles] at paras. 15–18. Thus, discrimination cases decided under human rights statutes are instructive when considering the first step of the section 15 test.
[117] The decision of Justice Mactavish, when she was Chairperson of the Tribunal, in McAllister-Windsor involved a situation like the present case. There, the Tribunal considered whether a provision then contained in the EI Act that limited the total number of weeks an individual could receive combined sickness, maternity, and parental benefits to 30 weeks violated the CHRA.
[118] Ms. McAllister-Windsor suffered from a pregnancy-related medical condition that required bed rest. As a result, she applied for and received 15 weeks of EI sickness benefits prior to giving birth, followed by the maximum 15 weeks of maternity benefits. Having reached the statutory 30-week cap, she was denied parental benefits despite otherwise meeting the eligibility requirements. She alleged that the 30-week cap on stacking special benefits then contained in the EI Act discriminated against her on the basis of sex and disability because it effectively penalized women who required pregnancy-related sickness benefits before childbirth. The Tribunal agreed, concluding that Ms. McAllister-Windsor had established a prima facie case of discrimination under the CHRA and that Human Resources Development Canada (HRDC) failed to establish that the discriminatory rule was justified as a bona fide requirement.
[119] The central issue before the Tribunal was whether the anti-stacking provision in the EI legislation that previously prevented the stacking of special benefits beyond 30 weeks, although facially neutral, had a discriminatory effect on women such as the complainant. HRDC argued, like the respondent does in the present case, that no discrimination existed because every claimant, regardless of sex or disability, was subject to the same 30-week limit. The Tribunal rejected this argument, finding that it reflected an outdated formal equality approach that failed to account for the legislation’s practical operation.
[120] Instead, the Tribunal held that the complainant should be compared to other recipients of special EI benefits. Using this comparator, the Tribunal concluded that subsection 11(5) imposed a unique burden on women who required sickness benefits during pregnancy. While other parents could receive both maternity and parental benefits, women whose pregnancies were complicated by illness or disability exhausted their entitlement before becoming eligible for parental benefits.
[121] Although McAllister-Windsor was decided under the CHRA rather than section 15 of the Charter, its analysis is instructive because it applies the substantive equality principles articulated in BCGSEU, Motor Vehicles, Bombardier, and Moore, which were later adopted by the Supreme Court in the context of section 15 of the Charter in cases such as Fraser and Kanyinda. The Tribunal emphasized that a facially neutral legislative rule cannot be assessed in the abstract; rather, the inquiry must focus on its practical operation and whether it imposes a disproportionate burden on members of a protected group.
[122] The same reasoning applies here. The discriminatory feature of the present scheme does not lie in Parliament’s decision to provide maternity or parental benefits. Nor is the question whether the impugned provisions are facially neutral or whether some fathers may also receive fewer weeks of regular benefits. Rather, consistent with Fraser and McAllister-Windsor, the Court must examine the practical operation of the legislative scheme. Viewed in that way, the 50-week cap in subsection 12(6) of the EI Act, along with the other provisions the applicants impugn, result in primarily women, because they have taken maternity and parental leave, losing the job loss protection they earned through their participation in the workforce if they lose their employment before they are able to return to work and establish a new benefit period. It is that practical effect, operating against the backdrop of pregnancy and women’s disproportionate caregiving responsibilities, that reinforces the impact of the impugned provisions on the basis of sex.
[123] Consequently, I agree with the General and Appeal Divisions that the applicants established the necessary nexus between the impugned provisions and the adverse impact they experienced. The evidence before the General Division, including Dr. Rose’s expert evidence, established that women overwhelmingly receive maternity benefits and that women receive the great majority of parental benefits. The evidence further established that women continue to bear the primary responsibility for pregnancy, childbirth and much of the caregiving associated with the arrival of a new child. These are not disputed social realities; they are matters recognized repeatedly by the Supreme Court of Canada: Brooks at pp. 1237–42; Fraser at paras. 72–75; Kanyinda at paras. 75–78.
[124] The impugned provisions operate by counting weeks during which claimants receive maternity and parental benefits toward the maximum number of weeks for which benefits may be paid during a benefit period. Consequently, a claimant who loses her employment shortly before, during, or shortly after maternity or parental leave may have exhausted, or substantially diminished, the weeks available to receive regular benefits, despite having accumulated sufficient insurable employment to qualify for them. Claimants who do not interrupt their labour force participation to receive maternity or parental benefits are not similarly affected. This causal connection between the legislative scheme and the differential impact is sufficient to satisfy the first step of the section 15 analysis: Sharma at paras. 43–49; Fraser at paras. 45–56.
[125] Although the statutory provisions do not expressly distinguish between men and women, they distinguish in their effect. It is women who receive maternity benefits because only women can become pregnant and give birth. It is also overwhelmingly women who receive parental benefits, particularly in conjunction with maternity leave. Thus, the practical effect of the legislative scheme falls principally upon women who become mothers. This is sufficient to establish a distinction based on sex under the first stage of the section 15 analysis. As the Supreme Court has repeatedly emphasized, section 15 protects against adverse-effect discrimination arising from facially neutral laws whose practical operation disproportionately burdens a protected group: Fraser at paras. 30, 42–45, 49; Kanyinda at paras. 37, 49–55.
[126] Nor is it an answer to say, as the respondent submits, that the impugned provisions also apply to men who receive parental benefits. Section 15 does not require that every member of the protected group be affected or that no one outside the group experience the same disadvantage. The Supreme Court has repeatedly rejected such an approach. Partial discrimination is discrimination nonetheless. The fact that some fathers may also receive fewer regular benefits because they claimed parental benefits does not alter the reality that the adverse impact falls disproportionately on women because of pregnancy, childbirth and the gendered distribution of caregiving responsibilities: Brooks at p. 1248; Fraser at paras. 72–75; Kanyinda at paras. 75–78; Michel at para. 88.
[127] The respondent likewise submits that the applicants are treated no differently than any other claimant who exhausts the maximum number of weeks of benefits available during a benefit period. However, that submission merely restates the facial neutrality of the legislation. It does not answer the question posed by section 15. The relevant inquiry is why this particular group of claimants reaches the statutory maximum. Here, the answer is because they exercised their entitlement to maternity and parental benefits; benefits that are intrinsically connected to pregnancy, childbirth, and the care of a newborn, matters that are unique to women or disproportionately undertaken by women. As the Supreme Court explained in Brooks, discrimination on the basis of pregnancy is discrimination on the basis of sex, and a law that disadvantages women because of pregnancy engages section 15 notwithstanding that it is framed in neutral terms: Brooks at pp. 1237–42; see also Fraser at paras. 72–75; Kanyinda at para. 42.
[128] I therefore agree with the General and Appeal Divisions that the applicants established that the impugned provisions create a distinction in their impact based on sex. I consequently find that they did not err on this point. The applicants demonstrated both the social circumstances of the protected group and the disproportionate consequences produced by the impugned provisions, thereby satisfying the evidentiary requirements described by the Supreme Court for the first stage of the section 15 analysis: Fraser at paras. 55–61; Sharma at paras. 43–49; Kanyinda at paras. 52–55. There is no basis to interfere with the conclusion of the General Division and the Appeal Division that the impugned provisions disproportionately impact women.
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