Reference re: Employment Insurance Act ss. 22 and 23

On October 20, 2005, the Supreme Court of Canada overturned the decision of the Quebec Court of Appeal, which had held that the maternity and parental leave benefit provisions of the Employment Insurance Act were ultra vires, or beyond the jurisdiction of, the federal government and fell exclusively within provincial jurisdiction.

The case began when the Government of Quebec wanted to establish its own regime governing maternity and parental leave. In order to finance the new scheme, Quebec wanted the federal government to reduce the contributions of Quebec employers and workers make to the federal employment insurance regime. When Quebec and Canada were unable to reach an agreement, Quebec went ahead with its plan anyway. It also referred the question regarding the constitutionality of the maternity to the Quebec Court of Appeal.

The Court of Appeal found in Quebec’s favour, holding that the maternity and parental leave benefits provisions was outside the jurisdiction of the federal government. It concluded that an amendment to the Constitution in 1940, which gave the federal government jurisdiction over “unemployment insurance”, did not extend to maternity and parental leave benefits. Rather, Parliament’s jurisdiction was restricted to creating an insurance regime that protected against the loss of income resulting from a loss of employment only for economic reasons, and not for the interruption of their employment for “personal reasons”. The federal government appealed to the Supreme Court of Canada.

The Supreme Court overturned the decision, holding that the provision relating to maternity benefits represents a valid exercise of the federal jurisdiction over unemployment insurance. The purpose of maternity benefits is to protect workers’ incomes from the time they lose or cease to hold their employment to the time they return to the labour market, the Supreme Court held, and this is consistent with the essence of the federal jurisdiction over unemployment insurance. The Court also concluded that, like maternity benefits, parental benefits are a mechanism for providing replacement income when an interruption of employment occurs as a result of the birth or arrival of a child. The inclusion of this type of benefit in the employment insurance scheme is an extension made necessary by the equality rights of adoptive parents and natural parents.

The Canadian Labour Congress intervened in the appeal in support of the federal government and federal maternity and parental benefits. The CLC was represented by Steven Barrett and Charlene Wiseman

Click here to read the Supreme Court of Canada’s decision