700-hour rule for EI benefits applies equally to men and women

Canada (Attorney General) v. Lesiuk [2003] F.C.J. No. 1 (F.C.A.), January 8, 2003

Lesiuk worked part-time because she had to provide care to her young child. She lost her job and applied to the Employment Insurance Commission for EI benefits.

The Employment Insurance Act requires employees to have worked a minimum of 700 hours in order to qualify for benefits. Lesiuk had only worked 667 hours and her application for benefits was therefore refused.

On appeal, the umpire held the act violated the right to equality under s. 15(1) of the Charter of Rights and Freedoms. In coming to this conclusion, the umpire relied on evidence that suggested the 700 hour rule was predicated on a 35-hour workweek, whereas women on average only work 30 hours per week and perform more unpaid obligations than men.

The umpire therefore accepted the argument the 700 hour requirement resulted in discriminatory treatment of women and this discriminatory treatment could not be justified.

On further appeal, the Federal Court of Appeal acknowledged Lesiuk experienced differential treatment due to her gender and that “women parents” was an analogous ground of discrimination which provided protection under the charter.

But the court held the differential treatment did not amount to discrimination under the charter. The court noted that Lesiuk failed to establish there was a history of disadvantage, stereotyping, vulnerability and prejudice towards women parents. In addition she failed to establish that the 700 hour minimum eligibility standard functioned by device of stereotype or prejudice.

The court held the eligibility requirements were not in place due to a lack of respect of dignity towards women parents. Rather the eligibility requirements were an administrative tool necessary to run a viable employment insurance scheme. Therefore Lesiuk was not entitled to EI benefits.

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