Two years ago, I noted an interesting decision that ruled that when parents have twins, both parents can claim the full 35 weeks’ of eligible employment insurance benefits–one parent could claim 35 weeks for child one, and the other parent can claim 35 weeks for child two.
The parents in that case have informed me that that decision was recently overruled by the EI Umpire. Here is the Umpire’s decision.
The Legislative Interpretation
It’s an interesting decision by Justice Zinn. It includes a Charter argument. The key issue was whether Section 12, and 12(4) in particular, entitles parents of multiple children to EI benefits for each child separately. Section 12(4) reads:
(4) The maximum number of weeks for which benefits may be paid
a) for a single pregnancy is 15; and
b) for the care of one or more new-born or adopted children as a result of a single pregnancy or placement is 35.
Zinn rules that this language is unambiguous. It clearly indicates, in his view, that there are a total of 35 weeks of eligible EI benefits available per pregnancy, regardless of how many babies are born. The legislation permits the parents to split up the benefits between them, but it does not permit parents of twins to each claim 35 weeks entitlement per child.
The Charter Argument
The parent who brought the claim then argued that, if the legislation does not permit parents of twins to each claim benefits separately, that is violates Section 15 of the Charter. Section 15 says this:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Can you see any ground listed there that would apply to parents of twins?
The answer is No. However, the Charter also protects against discrimination on analogous grounds (as I explain in my paperette The Charter and Workplace Law: A Guide for Beginners). An analogous ground is one based on “a personal characteristic that is immutable [unchangeable] or changeable only at unacceptable cost to personal identity.”
Zinn finds that “family status” is an analogous ground, and that being parents of multiple children falls within the meaning of family status.
The next question was whether the EI Act “results in a distinction based on this ground.” Zinn find that it does, noting that the legislation draws a distinction between “parents of twins and other parents”. He notes, for example, that parents who adopted a child and gave birth to a child at about the same time would be permitted to claim dual benefits, but the parents of twins cannot. Moreover, parents of twins receive less benefits “per child” than single parent children. These examples demonstrate that the legislation does make a distinction between parents of twins and other types of parents.
The next step was to decide if this distinction based on an analogous ground discriminates by “creating a distinction that perpetuates prejudice and stereotyping”. Here Zinn rules that there is no discrimination in the legislation, because it does not perpetuate a prejudice or disadvantage relating to parents of multiple births. He writes:
There is no evidence that parents of twins are subject to unfair treatment in society by virtue of the fact that they are parents of twins or that they are not given equal concern, consideration, or respect. The fact that caring for twins may involve more work than caring for single newborn does not prove historical disadvantage that perpetuates prejudice and stereotyping.
In Zinn’s view, the legislation does not intend to compensate parents for the work involved in raising children. It is only intended to partially fund an interruption of earnings caused by taking time off to care for new children. Zinn also falls back on a very common position taken by judges in Charter cases involving work-related and social legislation, that governments should be afforded considerable latitude in dealing with complex social-economic issues.
Therefore, Zinn rules that the legislation does not infringe the Charter. I’m informed that an appeal to the Federal Court of Appeal has been launched, so we will keep out eye on this case.
What do you think? Should parents of multiple births be entitled to claim benefits per each child? Or is this decision correct in finding that no matter how many children are born, benefits should only be awarded for 35 weeks per couple?
