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Should Parents of Twins Be Entitled to Full EI Benefits for Each Child?

by David Doorey September 30, 2011
written by David Doorey September 30, 2011

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?

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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RSandillRicha Sandill@RSandill·
24 Feb

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

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TheLawofWorkDavid J. Doorey@TheLawofWork·
24 Feb

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
24 Feb

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
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