Simon's Legal Resources

Review - Fresh Law - Critique

. 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 comments on the implications of the 'fresh law' doctrine in multi-level administrative proceedings:

[89] Given this two-step process, an applicant cannot raise issues for the first time before this Court that were not raised before the Appeal Division as this would circumvent the statutory appeal process provided in the DESDA: Khodykin v. Canada (Attorney General), 2024 FCA 96 at para. 6; Canada (Attorney General) v. Ibrahim, 2023 FCA 204 at paras. 51–53. As was noted by this Court at paragraph 8 of Faullem v. Canada (Attorney General), 2022 FCA 29, "“the multi-level administrative justice system established by Parliament in the [""DESDA] cannot be considered a learning period that allows parties to perfect the analysis of their file and of the legislation so as to be able to raise new issues at any time.”"