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Charter - s.15 Discrimination - Test - Step Two 'Historical Disadvantage'. 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 second step of the s.15 discrimination test ('historical disadvantagr') on the case facts:[129] I turn then to the second stage of the section 15 analysis. As already noted, the question at this stage is whether the distinction created by the impugned provisions imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage experienced by the protected group. The inquiry is concerned with substantive inequality and requires the Court to consider the impact of the impugned provisions in their full social and legislative context: Fraser at paras. 76–79; Sharma at paras. 50–56; Kanyinda at paras. 57–66.
[130] In my view, the applicants readily satisfy this second requirement, and the Appeal Division erred in holding otherwise.
[131] There can be no dispute that women have historically experienced disadvantage in the labour market because of pregnancy, childbirth, and the disproportionate burden of caregiving. These disadvantages have been recognized repeatedly by the Supreme Court and were amply demonstrated by Dr. Rose’s evidence. In Brooks, the Court described discrimination based on pregnancy as one of the clearest examples of sex discrimination because pregnancy is a condition unique to women and adverse treatment based upon pregnancy necessarily disadvantages women. More recently, in Fraser and in Kanyinda, the Supreme Court reaffirmed that women continue to bear a disproportionate share of childcare responsibilities and that workplace rules which appear neutral may nonetheless perpetuate women’s economic disadvantage by failing to account for that social reality: Brooks at pp. 1237–42; Fraser at paras. 88–108; see also Kanyinda at paras. 42, 58–60.
[132] The impugned provisions in the EI Act operate to reinforce this historical disadvantage. The applicants qualified for regular EI benefits through their participation in the labour force and payment of EI premiums. However, because they exercised their statutory entitlement to maternity and parental benefits after the birth of a child, they lost all or most of the regular EI benefits they otherwise would have received when they lost their employment. Their receipt of maternity and parental benefits thus operated, in practical terms, to diminish or extinguish the protection afforded by the EI scheme against unemployment caused by job loss.
[133] Put differently, the applicants are placed in a worse position precisely because they interrupted their employment to have babies and to care for their newborns, functions that Parliament itself has recognized warrant income replacement through maternity and parental benefits. However, rather than merely replacing income during maternity and parental leave, the legislative scheme operates to deprive new mothers in the applicants’ situation of the insurance protection they earned against unemployment. This is a burden that flows directly from pregnancy and the assumption of caregiving responsibilities. In short, the price the legislation exacts for granting maternity and parental benefits is the loss of job loss benefits, and this price is disproportionately paid by women.
[134] The respondent submits that there is no discrimination because maternity and parental benefits are themselves beneficial measures intended to assist families and because the EI scheme, viewed as a whole, confers significant advantages upon new parents. I do not accept this submission.
[135] While legislative context is relevant at the second stage of the section 15 analysis, it cannot obscure the discriminatory effect of the provisions under challenge. As the Supreme Court emphasized in Kanyinda, legislative context may assist in understanding the operation of the scheme, but it cannot become a surrogate for the justification analysis required under section 1; nor does the existence of ameliorative features elsewhere in a statutory scheme immunize another provision within that scheme from constitutional scrutiny: Kanyinda at para. 65; Fraser at paras. 79–80; Alliance at para. 42.
[136] Parliament was under no constitutional obligation to create maternity or parental benefits. However, once it chose to provide those benefits, it was required to do so in a manner consistent with section 15 of the Charter. As the Supreme Court has repeatedly held, governments may address disadvantage incrementally, but they may not distribute statutory benefits in a discriminatory manner: Eldridge at para. 73; Alliance at para. 42; Kanyinda at para. 66.
[137] The legislative history of maternity benefits under the unemployment insurance scheme reinforces this conclusion. Parliament enacted maternity benefits in 1971 to respond to the interruption in earnings experienced by women as a result of pregnancy and childbirth and to facilitate their continued participation in the labour force. In introducing maternity benefits, the Minister of Labour explained to Parliament that maternity benefits were intended to provide economic security to women who were required to leave work to have a child, observing that many women participated in the workforce out of economic necessity and that the loss of employment income during maternity created "“terrible hardship”": Canada, House of Commons Debates, 28th Parl., 3rd Sess., Vol. 5 (19 April 1971) at p. 5039. The benefits were therefore introduced because pregnancy creates a labour-market disadvantage unique to women.
[138] The history preceding the introduction of maternity benefits likewise demonstrates that Parliament was responding to longstanding discrimination experienced by women within the unemployment insurance system when it introduced maternity benefits. For many years, married women were either excluded from coverage altogether or subjected to more restrictive eligibility requirements. Pregnant women were frequently denied unemployment benefits because they were presumed to be unavailable for work, and official inquiries questioned whether mothers of young children ought to receive unemployment insurance at all. As Justice Deschamps observed in the EI Act Reference, these provisions reflected the social assumptions of the time: that women were expected to be supported by their husbands and to withdraw from the workforce following marriage or childbirth. Maternity benefits were introduced against that historical backdrop as a measure designed to ameliorate, rather than perpetuate, women’s labour-market disadvantage.
[139] Parliament thereafter repeatedly expanded the protection afforded to parents under the EI scheme. It introduced parental benefits, increased their duration, expanded eligibility, permitted self-employed workers to participate voluntarily, and amended the legislation following findings of discrimination so that claimants may combine different forms of special benefits without forfeiting entitlement. These amendments reflect a consistent legislative objective of reducing, rather than reinforcing, the economic disadvantages associated with pregnancy and the care of young children.
[140] Particularly instructive are Parliament’s removal of the magic-ten rule and the associated cap on receipt of job loss benefits by pregnant women, and its response to McAllister-Windsor, both of which were undertaken to address discrimination.
[141] As noted in Morrell, Parliament repealed the magic-ten rule and the associated cap on receipt of job loss benefits by pregnant women during the 15 weeks when maternity benefits could have been payable in the 1971 UI Act to ensure conformity with the requirements of subsection 3(2) of the CHRA, that defines pregnancy-based discrimination as discrimination based in sex, which is prohibited by the CHRA.
[142] And in McAllister-Windsor, as noted, the Tribunal concluded that the statutory cap on combined sickness, maternity and parental benefits discriminated against women because it caused those who required pregnancy-related sickness benefits to exhaust their entitlement and lose eligibility for parental benefits. In response, Parliament amended the EI Act to permit claimants to receive the full complement of special benefits. In so doing, Parliament at least implicitly recognized that requiring women to sacrifice one statutory benefit because they had exercised another benefit associated with pregnancy and childbirth was inconsistent with the principle of substantive equality. Although the amendments addressed the interaction among special benefits, they did not address the analogous problem presented here, namely, that women who receive maternity and parental benefits may still be required to sacrifice regular EI benefits earned through their participation in the labour force.
[143] This legislative evolution is significant. It demonstrates a consistent recognition by Parliament that pregnancy and childbirth should not operate to reduce the income protection otherwise available under the employment insurance scheme. The impugned provisions stand as something of an anomaly. While Parliament has progressively removed barriers that prevented women from receiving the full range of special benefits, it has retained provisions that effectively require many women to forfeit regular EI benefits solely because they exercised their statutory entitlement to maternity and parental benefits. That result is difficult to reconcile with the very purpose for which maternity benefits were originally enacted.
[144] The price of more generous maternity and parental benefits cannot be the forfeiture of regular EI benefits. Parliament’s decision to expand support for pregnancy and childbirth cannot, at the same time, operate to diminish the income protection otherwise available under the employment insurance scheme.
[145] The respondent argues that fathers who receive parental benefits may also receive fewer weeks of regular benefits if they lose their employment within the benefit period. That submission again overlooks the substantive equality analysis required by section 15 of the Charter. The issue is not whether some men are also adversely affected. Rather, it is whether the legislation disproportionately impacts women and reinforces a labour market disadvantage experienced by women because of pregnancy and caregiving. The evidence before the General Division firmly establishes that it does.
[146] Nor can it be said that the applicants’ disadvantage arises solely from their decision to claim maternity and parental benefits. That characterization ignores the reality that maternity benefits exist because pregnancy temporarily renders women unavailable for work and that parental benefits exist to facilitate the care of newborn children. As the Supreme Court has repeatedly emphasized, the section 15 analysis must proceed from the actual circumstances of the protected group rather than abstract notions of individual choice: Brooks at pp. 1237–42; Fraser at paras. 86–108.
[147] The impugned provisions therefore do more than draw a distinction based on sex. They reinforce the longstanding economic disadvantage associated with pregnancy and motherhood by diminishing the unemployment protection available to women precisely because they bear children and assume the caregiving responsibilities that accompany childbirth. The impugned provisions thereby perpetuate the historical disadvantage recognized in Brooks, Fraser, and Kanyinda.
[148] I therefore conclude that the Appeal Division erred in finding that the applicants failed to meet the second step of the test for discrimination and conclude that the applicants have established the second step of the section 15 analysis. Thus, the impugned provisions in the EI Act violate section 15 of the Charter unless they can be justified under section 1.
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