Appeal Court Rules Denying EI After Maternity Leave Unconstitutional

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The Federal Court of Appeal has ruled that provisions denying regular employment insurance (EI) benefits to women who lose their jobs during or shortly after maternity leave violate their Charter right to equality.

The three-judge panel ruled in favour of six Quebec women who lost their jobs and were denied all or most of the regular EI benefits that they would have received had they not obtained maternity and parental benefits, according to the court decision made on Sept. 3.

The case challenged the constitutionality of numerous subsections of the EI Act for violating equality rights guaranteed under the Canadian Charter of Rights and Freedoms.

The EI Act provides both regular EI benefits for job loss and special benefits, including maternity and parental benefits. Under the current rules, periods when someone receives maternity or parental benefits generally cannot be used to extend the qualifying period or benefit period for regular EI, and regular and special benefits are subject to limits on how they can be combined.

As a result, workers who lose their jobs shortly before, during, or soon after maternity or parental leave can be denied some or all regular EI benefits, while co-workers laid off at the same time who have not recently taken parental leave may qualify.

The six women in the case were all denied regular EI benefits after losing their jobs during or shortly after maternity leave. Because the system either ignored the hours they had worked prior to or during their leaves, or capped their maximum combined benefits, they were deemed to have insufficient insurable hours to establish new claims.

“The impugned provisions of the EI Act … infringe section 15 of the Charter and cannot be justified under section 1,” Justice Mary Gleason said.

Gleason declared the EI Act provisions null, subject to a one-year suspension. The six women were exempted from this delay, granting them immediate relief and a redetermination of their claims under a compliant scheme.

The judges also found that the unconstitutional stipulations in the EI Act disproportionately affected women because women were significantly more likely than men to combine different types of EI benefits and reach the 50-week limit. While 28 percent of female applicants combined benefits, only 9.8 percent of male applicants did so.

The 50-week cap means that, within a single EI benefit period, a claimant generally cannot receive more than 50 weeks of combined regular and special EI benefits.

Women also typically received longer periods of combined maternity and parental benefits, with more than half receiving 50 weeks, while pregnancy-related sickness benefits could bring some women closer to the limit. By comparison, men more often combined sickness, paternity or shorter parental benefits with regular EI, making them less likely to reach the 50-week threshold and lose access to regular benefits, the decision says.