The case of workers on maternity leave who see their jobs eliminated and who are refused regular employment insurance benefits will once again find themselves before a court.
There are six workers in this situation, supported by the Mouvement action emploi Montréal, who are now addressing the Federal Court of Appeal to ask it to annul the decision of the Appeal Division of the Social Security Tribunal.
At the start of this case, six workers lost their jobs during their maternity leave, or shortly after, following job abolition or company restructuring.
They were refused payment of regular employment insurance benefits, or its extension, because they had not accumulated enough hours of insurable work during the reference period to be entitled to regular benefits.
They challenged the decision of the Employment Insurance Commission before the General Division of the Social Security Tribunal.
In January 2022, it ruled in their favor, ruling that certain paragraphs of the Employment Insurance Act contravened the Canadian Charter of Rights and Freedoms. She concluded that there was a “disproportionate effect” on women, since they are the ones who give birth and take time off work to meet childcare obligations. This amounted to perpetuating the historical disadvantage experienced by women.
The case was appealed. And, last January, the Appeal Division of the Social Security Tribunal overturned the decision of its General Division. It ruled that the contested provisions were indeed constitutional and confirmed the refusal of the Employment Insurance Commission to pay regular benefits.
It is now the turn of the workers concerned and the Mouvement Action Unemployment Montréal to ask the Federal Court of Appeal to intervene.
In their request for judicial review, they criticize the Appeal Division of the Social Security Tribunal for failing to answer the question of “whether the contested provisions reinforce, perpetuate or accentuate a disadvantage”.
“The Appellate Division misunderstands the notion of substantive equality and the fundamental and well-established principle that prima facie neutral treatment can lead to serious inequalities,” the applicants write in their request.
“In concluding that Plaintiffs’ claims for benefits were denied because of general rules that apply to all and not because their wages are less worthy of protection, the Appellate Division effectively requires direct and intentional discrimination or requires the demonstration of an attack on dignity, a criterion whose requirement has been expressly eliminated by the jurisprudence of the Supreme Court of Canada in matters of the right to equality,” they add.