Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), 1991 SCC 12

Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22

Canada Employment and Immigration Commission,

the Deputy Attorney General of Canada and

the Attorney General of Canada Appellants

v.

Marcelle Tétreault‑Gadoury Respondent

and

Léon Vellone, Rodrigue Deraiche and André Manocchio Mis en cause

and

Cuddy Chicks Limited Intervener

and

Ontario Labour Relations Board and

United Food and Commercial Workers

International Union, Local 175 Interveners

Indexed as: Tétreault‑Gadoury v. Canada (Employment and Immigration Commission)

File No.: 21222.

1991: January 30; 1991: June 6.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

on appeal from the federal court of appeal

Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Age discrimination ‑‑ Person meeting all qualifications for unemployment insurance benefits except for being over age limit ‑‑ Whether or not age exclusion infringing s. 15 of Charter ‑‑ If so, whether or not justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 15(1) ‑‑ Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 31(1), (2), (4).

Administrative law ‑‑ Jurisdiction ‑‑ Tribunal not expressly given power to consider all relevant law ‑‑ Employment Commission making ruling without reference to constitutional arguments ‑‑ Whether administrative tribunal can apply Charter absent legislative authority to do so.

Courts ‑‑ Federal Court ‑‑ Jurisdiction ‑‑ Appeal from Unemployment Insurance Act Board of Referees to Federal Court on constitutional issue by‑passing Umpire ‑‑ Board not expressly given power to consider all relevant law ‑‑ Umpire having power to consider all relevant law ‑‑ Whether the Federal Court of Appeal was entitled to consider the constitutional question, if the Board of Referees did not have jurisdiction over it ‑‑ Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 28.

The respondent lost her job shortly after her sixty‑fifth birthday and applied for unemployment insurance benefits. The Employment and Immigration Commission ruled that she was no longer entitled to receive ordinary unemployment insurance benefits because of her age even though she met all the other conditions under the Unemployment Insurance Act, 1971. Respondent was accordingly entitled only to the special lump sum retirement benefit provided for under s. 31 of the Act.

The respondent appealed the Commission's decision to a Board of Referees on the ground that s. 31 of the Act was inconsistent with the Canadian Charter of Rights and Freedoms. This Board upheld the Commission's decision without rendering an opinion on the constitutional question. Rather than appealing to an umpire, as permitted by the Act, the respondent elected to challenge the Board's decision directly in the Federal Court of Appeal. That court found that that provision violated s. 15 of the Charter and that the Board of Referees had erred in failing to consider the respondent's Charter arguments.

The Canada Employment and Immigration Commission appealed from the decision of the Court of Appeal. At issue here were: (1) whether an administrative tribunal that has not expressly been provided with the power to consider all relevant law may, nonetheless, apply the Charter; and (2), whether the former s. 31 of the Act violated s. 15 of the Charter. A subsidiary issue was whether the Federal Court of Appeal was entitled to consider the constitutional question, if the Board of Referees did not have jurisdiction over it.

This case did not involve the application of s. 24(1) of the Charter and the consequent need for a determination of whether the tribunal is a "court of competent jurisdiction" within the meaning of that section. Respondent did not seek any remedy that would require its invocation. All she sought was that the Board of Referees disregard s. 31 when calculating the benefits that would otherwise be due her under the Act.

Held: The appeal should be allowed.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.: In Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 63 (SCC), [1990] 3 S.C.R. 570, and Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 000, the companion case to this appeal, the Court determined that an administrative body expressly empowered by legislative mandate to interpret or apply any law necessary to reach its findings, has the power to apply the Charter.

The Unemployment Insurance Act, 1971 does not specifically address the issue whether the Board of Referees has jurisdiction to consider all relevant law. This jurisdiction is expressly conferred upon the umpire, to whom an appeal from the Board of Referees may be made. The failure to provide the Board of Referees with a power similar to that given to the umpire was not merely a legislative oversight. The power to interpret law is not one which is lightly conferred upon administrative tribunals.

The Board of Referees, an administrative body similar in institutional and functional terms to the umpire, may well have the practical capability to deal with Charter issues. The particular legislative scheme, nevertheless, contemplates that constitutional questions be more appropriately presented to the umpire, on appeal, rather than to the Board itself.

The Board of Referees had jurisdiction over the parties but not over the subject matter and the remedy. The subject matter concerned not simply the determination of the respondent's eligibility for benefits but also the determination of whether s. 31 of the Unemployment Insurance Act, 1971 violated s. 15 of the Charter. Similarly, the remedy would have required the Board to disregard s. 31 when awarding the respondent benefits, assuming it found s. 31 to be inconsistent with the Charter. Such a determination rested within the jurisdiction of the umpire, not the Board of Referees.

Many of the practical advantages associated with allowing administrative tribunals to decide constitutional questions were preserved here, even though jurisdiction to decide Charter questions does not rest with the Board. Foremost amongst these is that the Act allows for an appeal to an umpire who does possess such jurisdiction and the applicant therefore has the option of pursuing an avenue outside the regular court process. Another advantage is that the umpire will possess a certain insight, based upon broad experience with the legislative scheme, that will enable him or her to bring a specialized expertise to bear on the issue.

Section 28(1)(a) of the Federal Court Act allows for a direct application to the Court of Appeal to set aside the decision of a federal board on the ground that the board refused to exercise its jurisdiction. Had the respondent chosen to appeal the decision of the Board of Referees to an umpire first, and then to the Federal Court of Appeal, the umpire would have had jurisdiction to determine the constitutional issue. However, one cannot overlook the special nature of the Federal Court of Appeal's powers of review under s. 28 of the Federal Court Act, which are limited to overseeing and controlling the legality of decisions of administrative bodies and to referring matters back to these bodies for redetermination. Therefore, while the jurisdictional question was legitimately before the Court of Appeal, the court did not have the jurisdiction to make a final determination of the constitutional question. The Court should allow the appeal, solely on the narrow procedural grounds advanced by the appellant. Under the circumstances, however, it was appropriate for the Court to address the constitutional issue here.

The age restriction that existed in s. 31 of the Unemployment Insurance Act, 1971 was inconsistent with s. 15(1) of the Charter. It removed persons aged 65 and over from the normal benefit plan and provided them with a single, lump sum retirement benefit in the amount of three times the weekly rate to which they would otherwise be entitled. It permanently deprived respondent of the status of a socially insured person by making her a pensioner of the state, even if she is still looking for a new job. It stigmatized her, regardless of her personal skills and situation, as belonging to the group of persons no longer part of the active population and perpetuated the insidious stereotype that a person who is 65 years of age or older cannot be retrained for the labour market.

The age ineligibility restriction was designed to prevent those over the age of 65 from receiving a "double" return of both pension and unemployment benefits, and to prevent abuses of the Act by persons intending to retire. These goals, taken at face value and considered in light of the Act's ultimate purpose of providing members of the active labour force with a measure of economic security while temporarily unemployed met the "objectives test". A further objective was to tailor benefits under the Act to fit in with the scheme of other social programs designed for people over the age of 65. It is fair to take into account the possibility that a group deprived of benefits under one Act may be receiving equal, or even greater, benefits under another. Nevertheless, it is doubtful that the objective of fitting the Act within the government's particular legislative scheme of social programs could, in itself, be sufficiently important to justify the infringement of a Charter right.

The law has not been carefully designed to achieve any of these objectives. Section 31 may not even have been rationally connected to these objectives and certainly did not meet the minimal impairment requirement. There was no evidence that those over age 65 abused the Act any more than those in other age groups or that this abuse was any more difficult to detect. The objective of preventing double payment of benefits could have been achieved by simply deducting pension receipts from unemployment benefits. The objective of fitting the Act within the legislative scheme was not furthered by denying benefits to individuals over 65 and that denial was not compensated for by the provisions of other Acts. There was no evidence that the government could not afford to extend benefits to those over 65 or even more significantly, that any of the other Acts attempted to address the problem of sixty‑five‑year‑olds who must keep working because they receive an insufficient pension or no pension at all. Indeed, s. 31 denied unemployment benefits precisely to those who needed them most. Even allowing the government a healthy measure of flexibility, the complete denial of unemployment benefits is not an acceptable method of achieving any of the government objectives. All of them could easily be attained by less intrusive means.

Per L'Heureux‑Dubé J.: The reasons of La Forest J. were agreed with subject to certain comments. In general, the mandate given to a board by the legislature will usually be the most salient factor in determining whether the tribunal has the power to decide questions under the Charter. The question of what "other factors" might be relevant to the determination of a tribunal's jurisdiction over subject matter, particularly in the absence of other related tribunals established under the same legislation which are permitted to interpret the Charter, should be left open. The legislation will not necessarily be determinative of the administrative tribunal's jurisdiction over the constitutional subject matter argued. Where the statute is silent or unclear, there are many "other factors" to be considered when determining whether the constitutional subject matter should properly be considered by an administrative tribunal.

Cases Cited

By La Forest J.

Applied: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 000; Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 63 (SCC), [1990] 3 S.C.R. 570; considered: McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229; Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143; referred to: Poirier v. Canada (Minister of Veterans Affairs), 1989 5208 (FCA), [1989] 3 F.C. 233; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Bliss v. Attorney General of Canada, 1978 25 (SCC), [1979] 1 S.C.R. 183; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; Re Blainey and Ontario Hockey Association (1986), 1986 145 (ON CA), 54 O.R. (2d) 513.

By L'Heureux‑Dubé J.

Referred to: Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 63 (SCC), [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 000; McLeod v. Egan, 1974 12 (SCC), [1975] 1 S.C.R. 517.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 15(1), 24(1).

Constitution Act, 1982, s. 52(1).

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1).

Federal Court Act, R.S.C., 1985, c. F-7, s. 52(d).

Human Rights Code, 1981, S.O. 1981, c. 53, s. 19(2).

Labour Relations Act, R.S.O. 1980, c. 228, s. 106(1).

Old Age Security Act, R.S.C., 1985, c. O‑9.

Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 17 (now R.S.C., 1985, c. U-1, s. 6), 18 (now s. 7), 24 (now s. 13), 31(1), (2), (4) (later s. 19(1), (2), (4), and since repealed S.C. 1990, c. 40, s. 13), 92(1)(am. by S.C. 1980-81-82-83, c. 158, s. 55), 96 (later s. 81), 98 (now s. 82).

Unemployment Insurance Regulations, C.R.C., c. 1576, ss. 57(2) (am. by SOR/86-58), 70(4) (am. by SOR/82‑1046).

Authors Cited

Canada. Commission of Inquiry on Unemployment Insurance. Report of the Commission of Inquiry on Unemployment Insurance. By Claude E. Forget, et al. Ottawa: Minister of Supply and Services Canada, 1986.

"Equality Issues in Federal Law: a discussion paper." Ottawa: Dept. of Justice, 1985.

APPEAL from a judgment of the Federal Court of Appeal, 1988 5634 (FCA), [1989] 2 F.C. 245, 88 N.R. 6, 53 D.L.R. (4th) 384, [1988] C.L.L.R. {PP} 14,050, 33 Admin. L.R. 244, 23 C.C.E.L. 103, 43 C.R.R. 320, quashing a decision of the board of referees. Appeal allowed.

Gaspard Côté, Q.C., and Carole Bureau, for the appellants.

Jean‑Guy Ouellet and Gilbert Nadon, for the respondent.

George W. Adams, Q.C., and Ralph N. Nero, for the intervener Cuddy Chicks Limited.

Stephen T. Goudge, Q.C., and Christopher M. Dassios, for the intervener the Ontario Labour Relations Board.

Douglas J. Wray, for the intervener United Food and Commercial Workers International Union, Local 175.

//La Forest J.//

The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ. was delivered by

La Forest J. -- This appeal, the reasons for which are released concurrently with those in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 000, is concerned with the constitutional validity of s. 31 of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48 (later R.S.C., 1985, c. U-1, s. 19 and since repealed, subsequently referred to as s. 31), under s. 15(1) of the Canadian Charter of Rights and Freedoms. Section 31 prohibited the dispensation of ordinary unemployment insurance benefits to applicants over the age of 65.

The appeal also raises the preliminary issue of whether the Board of Referees or an umpire established pursuant to the Unemployment Insurance Act, 1971 has jurisdiction to consider a challenge to the constitutional validity of a section of that Act, and the consequent jurisdiction of the Federal Court of Appeal.

Facts

The respondent, Marcelle Tétreault-Gadoury, became 65 on September 8, 1986. Shortly afterwards, on September 19, she lost her job as a co-ordinator with Association-locataires Villeray Inc., a position she had held for approximately six months at a weekly salary of $301.60. Accordingly, on September 22, 1986, she filed an application for benefits under the Unemployment Insurance Act, 1971. But for her age, the respondent would have been entitled to receive benefits amounting to $180 a week for a period of several weeks, pursuant to s. 24 of the Act.

On October 14, 1986, the Employment and Immigration Commission ruled that, although the respondent met all the other conditions under the Act, she was no longer entitled to receive ordinary unemployment insurance benefits because of her age. All she was entitled to was the special lump sum retirement benefit provided for under s. 31 of the Act, amounting to three weeks of benefits, or $540.

The respondent appealed the Commission's decision to a Board of Referees on the ground that s. 31 of the Act was inconsistent with the Charter. At the hearing, the respondent stated that since turning 65 all she had been receiving was $481 a month in pension payments, and that she was actively looking for work. She also entered into evidence several documents in support of her Charter argument, including minutes of a subcommittee of the House of Commons dealing with mandatory retirement, extracts from the report of the Forget Commission of Inquiry on Unemployment Insurance, and a working paper entitled "Equality Issues in Federal Law" published by the Department of Justice. The Board of Referees upheld the Commission's decision, without rendering an opinion on the constitutional question.

Rather than appealing to an umpire, as permitted by the Act, the respondent elected to challenge the Board's decision directly in the Federal Court of Appeal pursuant to s. 28(1) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. The Court of Appeal ruled in favour of the respondent, finding that s. 31 of the Unemployment Insurance Act, 1971 violated s. 15 of the Charter, and that the Board of Referees had erred in failing to consider the respondent's Charter arguments.

Since the decision of the Court of Appeal (1988 5634 (FCA), [1989] 2 F.C. 245) was rendered on September 23, 1988, s. 31 of the Unemployment Insurance Act, 1971 has been repealed retroactive to that date: S.C. 1990, c. 40, s. 13. The outcome of this appeal remains significant, however, since the situation of the respondent and those like her, who turned 65 prior to September 23, 1988, has not been affected by the change in legislation.

The Employment and Immigration Commission appeals from the decision of the Court of Appeal.

Jurisdiction of the Board of Referees

Before proceeding to the substantive issue in this appeal, one must address the preliminary question of whether the Board of Referees established pursuant to the Unemployment Insurance Act, 1971 has jurisdiction to consider the constitutional validity of a section of that Act.

The power of an administrative tribunal to decide questions involving the Charter was recently examined by this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 63 (SCC), [1990] 3 S.C.R. 570, and it is also addressed in Cuddy Chicks, supra, the companion case to this appeal. In both these cases, the Court held that an administrative body, which by virtue of its legislative mandate has expressly been given the power to interpret or apply any law necessary to reaching its findings, has the power to apply the Charter to determine that a particular provision of an Act is without force or effect. I do not propose to repeat the analysis that led to this conclusion here.

In this case, for the first time, the Court is faced with the question whether an administrative tribunal that has not expressly been provided with the power to consider all relevant law may, nonetheless, apply the Charter. I should point out, however, that like Douglas College and Cuddy Chicks, this case does not involve the application of s. 24(1) of the Charter and the consequent need for a determination of whether the tribunal is a "court of competent jurisdiction" within the meaning of that section. In particular, the respondent does not seek a formal declaration of the invalidity of s. 31 of the Unemployment Insurance Act, 1971 or, for that matter, any remedy that would require the invocation of s. 24(1). All she is asking is that the Board of Referees disregard s. 31 when calculating the benefits that would otherwise be due her under the Act. This distinction was properly recognized by Lacombe J. of the Federal Court of Appeal, supra, at pp. 254-55, who noted that in the present case it is s. 52(1) of the Constitution Act, 1982 that is being relied upon by the respondent, rather than s. 24(1) of the Charter.

For convenience, I set forth the text of s. 52(1):

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

As I have stressed in both Douglas College and Cuddy Chicks, supra, s. 52(1) does not, in itself, confer the power to an administrative tribunal to find a legislative provision to be inconsistent with the Charter. Rather, the inquiry must begin with an examination of the mandate given to the particular tribunal by the legislature.

Whereas in Cuddy Chicks, the Ontario Labour Relations Board was expressly empowered under s. 106(1) of the Labour Relations Act, R.S.O. 1980, c. 228, "to determine all questions of fact or law that arise in any matter before it . . .", the Board of Referees is given no such explicit authority in this case. The express mandate given to a particular tribunal by the legislature will normally be the most important factor in determining whether the tribunal has the power to find a legislative provision to be inconsistent with the Charter. Because an administrative tribunal is a creature of the state, it follows that the state should, unless otherwise prohibited, have power to confer upon a tribunal the authority to consider Charter issues and, equally, to restrict the tribunal from considering such issues. Therefore, where the legislature has already spoken definitively on the question, that will normally be the end of the inquiry. Where it has not, it will be necessary to examine other factors as well.

In the instant case, although the Unemployment Insurance Act, 1971 does not specifically address the issue whether the Board of Referees has jurisdiction to consider all relevant law, such jurisdiction is expressly conferred upon the umpire, to whom an appeal from the Board of Referees may be made. Section 96 of the Act (later s. 81), in relevant part, provides that:

96. An umpire may decide any question of law or fact that is necessary for the disposition of any appeal . . . and may dismiss the appeal, give the decision that the board of referees should have given . . . confirm, rescind or vary the decision of the board of referees in whole or in part. [Emphasis added.]

Further, as Lacombe J. pointed out, s. 70(4) of the Unemployment Insurance Regulations, C.R.C., c. 1576, as am. by SOR/82-1046, which dates from November 26, 1982, specifically contemplates the possibility of an umpire's finding a provision of the Act or regulations unconstitutional: see 1988 5634 (FCA), [1989] 2 F.C. 245, at p. 259. That provision reads:

70. . . .

(4) Where, in respect of a claim for benefit, an umpire has declared a provision of the Act or these Regulations to be ultra vires and an application is made by the Commission in accordance with the Federal Court Act to review the decision of the umpire, benefits are not payable in respect of any claim for benefit made subsequent to the decision of the umpire until the final determination of the claim under review, where the benefit would not otherwise be payable in respect of any such subsequent claim if the provision had not been declared ultra vires.

Taken together, these two provisions provide a strong indication that the legislature intended that the umpire have power to find provisions of the Act or its accompanying regulations inconsistent with the Charter. It is significant that the umpire has been expressly provided with this power, while the Board of Referees has not.

The maxim expressio unius est exclusio alterius, like all general principles of statutory interpretation, must be applied with caution. However, the power to interpret law is not one which the legislature has conferred lightly upon administrative tribunals, and with good reason. Although curial deference will not be extended to an administrative tribunal's holding on a Charter issue, such deference is generally applied to the interpretation of a statute within the tribunal's area of expertise, when the tribunal has been given the power to interpret law. It is unlikely, therefore, that the failure to provide the Board of Referees with a power similar to that given to the umpire was merely a legislative oversight.

It does not necessarily follow, however, that the Board of Referees is without the practical capability to deal with Charter issues. The Court of Appeal concluded that there was no practical reason for precluding the Board of Referees from resolving the constitutional issue. The administrative scheme set up under the Unemployment Insurance Act, 1971 is comprised of administrative bodies that cover a broad range of the judicial spectrum. At one end of this spectrum is the Employment and Immigration Commission, which is charged under the Act with, among other things, making all the initial determinations regarding an insured's eligibility, monetary entitlement, benefit period and compliance with the provisions of the Act. To ask the Commission to consider constitutional challenges as well would undoubtedly impede the important process of getting unemployment insurance payments out to the individual applicants as quickly as possible and would frustrate the very purpose of the Act. The careful consideration essential to undertaking an adequate assessment of the constitutional issue is fundamentally at odds with the speedy procedure required to allow the Commission to fulfill the functions it was designed to perform.

At the opposite end of the spectrum is the umpire. Section 92(1) of the Unemployment Insurance Act, 1971 (as am. by S.C. 1980-81-82-83, c. 158, s. 55), provides that umpires are to be appointed from among the judges of the Federal Court. The extensive legal training and experience required of a Federal Court judge ensures that the litigant will receive a capable determination of the constitutional issue. Such a determination would clearly not fall outside the judge's normal area of expertise and, since the umpire is already expected to hear appeals on all relevant questions of law, would not delay the proceedings to an unacceptable degree.

Falling somewhere in between these two bodies is the Board of Referees. In comparing the practical operation of the boards of referees with that of the umpires, the Court of Appeal stated, at p. 258, that "[t]hese judicial or quasi-judicial bodies are similar in institutional and functional terms, though there may be differences between them in the exercise of their jurisdiction . . . ."

While this assessment of the comparative expertise or practical capability of the Board may well be correct, it cannot outweigh the intention expressed by the legislature to give the power to interpret law to the umpire and not the Board of Referees. In other words, I find that, notwithstanding the practical capability of the Board of Referees, the particular scheme set up by the legislature in the Unemployment Insurance Act, 1971 contemplates that the constitutional question should more appropriately have been presented to the umpire, on appeal, rather than to the Board itself.

Applying the test set forth in Douglas College and Cuddy Chicks, I find that, while the Board of Referees had jurisdiction over the parties in this case, it did not have jurisdiction over the subject matter and the remedy. The subject matter before the Board concerned not simply the determination of the respondent's eligibility for benefits, but also the determination of whether s. 31 of the Unemployment Insurance Act, 1971 violated s. 15 of the Charter. Similarly, the remedy would have required the Board to disregard s. 31 when awarding the respondent benefits, assuming it found s. 31 to be inconsistent with the Charter. As I indicated above, under the legislative scheme described in the Act, such a determination rested within the jurisdiction of the umpire, not the Board of Referees.

Practical Advantages

In Douglas College and Cuddy Chicks, supra, I recognized that there are many advantages, from a practical perspective, associated with allowing administrative tribunals to decide constitutional questions. It is important to note that many of these practical advantages are preserved in the present case, even though jurisdiction to decide Charter questions does not rest with the Board. Foremost amongst these considerations is the fact that the Unemployment Insurance Act, 1971 allows for the possibility of appeal to an umpire who does possess such jurisdiction. This is of considerable importance in that it provides an applicant with the option of pursuing an avenue outside the regular court process. As I indicated in Douglas College, supra, at p. 604, one of the major advantages in allowing a party to challenge the constitutionality of a statute before an administrative body is the relative accessibility such bodies provide in comparison with the regular court system. As Lacombe J. notes, supra, at p. 258:

So long as the procedure in such [administrative] tribunals presents no obstacle to their doing so, litigants should be able to assert the rights secured by the Charter in the natural forum to which they can apply.... These are speedy, inexpensive and readily accessible proceedings, which should be within the immediate reach of the persons for whom they were enacted.

However, where, as here, the legislature has provided the litigant with the possibility of an administrative appeal before a body which has the power to consider the constitutional arguments, the need for a determination of the constitutional issue by the tribunal of original jurisdiction is clearly not as great. In such a situation, the advantages of dealing with the constitutional question within the administrative process are still preserved for the litigant.

In addition, another major advantage of having Charter issues addressed at the administrative level, that specialized expertise may be brought to bear on the issue, is maintained. The umpire will possess a certain insight, based upon broad experience with respect to the legislative scheme, that will render his or her contribution to the determination of the constitutional question a valuable one. Furthermore, the nature of the administrative process will not be compromised by the umpire's assumption of jurisdiction over Charter issues. In Douglas College, I alluded to the fact that there are some situations where giving the tribunal the power to consider constitutional argument would interfere with the relatively low-cost, specialized form of justice the tribunal is designed to give. The sheer volume of cases that some administrative bodies are required to hear would render the determination of constitutional issues highly impractical, if not impossible. The Employment and Immigration Commission is an example of such a body. On the other hand, a tribunal at a higher level of the administrative scheme whose functions can be described as being more adjudicative in nature ‑‑ that is, which frequently resolves questions of law or fact in accordance with legislative rules or regulations ‑‑ is likely to be in a better position both to receive argument on, and to resolve constitutional questions than a tribunal which is engaged primarily in fact finding. The umpire fits within this latter type of tribunal.

Jurisdiction of the Federal Court of Appeal

The appellant raises a subsidiary issue as to whether the Federal Court of Appeal was entitled to consider the constitutional question, if the Board of Referees did not have jurisdiction over it. As I indicated at the outset of this judgment, the present case came to the Federal Court of Appeal by virtue of s. 28(1) of the Federal Court Act, without the benefit of a ruling by the umpire. Section 28(1)(a) allows for the possibility of a direct application being made to the Court of Appeal to set aside the decision of a federal board on the ground that the board refused to exercise its jurisdiction.

Had the respondent first appealed the decision of the Board of Referees to an umpire, and then to the Federal Court of Appeal, the umpire would have had jurisdiction to determine the constitutional issue. The respondent, however, chose to bypass the umpire and get a ruling from the Federal Court of Appeal directly.

At the time the respondent raised her constitutional challenge before the Board of Referees, the jurisdiction of the Board to entertain such a challenge presented an unsettled legal question. The temptation to raise this unresolved jurisdictional question before the Court of Appeal directly was understandable. However, one cannot overlook the special nature of the Federal Court of Appeal's powers of review under s. 28 of the Federal Court Act. The powers of the Federal Court of Appeal under that section are limited to overseeing and controlling the legality of decisions of administrative bodies and to referring matters back to those bodies for redetermination, with directions when appropriate; see Federal Court Act, R.S.C., 1985, c. F-7, s. 52(d); Poirier v. Canada (Minister of Veterans Affairs), 1989 5208 (FCA), [1989] 3 F.C. 233, per Marceau J., at p. 247. I am therefore of the view that, while the jurisdictional question was legitimately before the Court of Appeal, the court had no jurisdiction to make a final determination of the constitutional question.

I conclude that this Court should allow the appeal, solely on the narrow procedural grounds advanced by the appellant. The respondent may, however, appeal to the umpire under s. 98 of the Unemployment Insurance Act, 1971 (now. s. 82). Any difficulty that may arise out of the time limit set forth in that section may be cured by the umpire in the exercise of the discretion there given to him. This is a case, however, that should be dealt with as economically and expeditiously as possible by all concerned. Under these circumstances, and especially considering that both parties have fully argued the constitutional point both before the Court of Appeal and this Court, it would seem appropriate for the Court to address the substantive issue here. I, therefore, propose to deal with that issue, namely, whether the former s. 31 of the Unemployment Insurance Act, 1971 is inconsistent with s. 15 of the Charter.

Does s. 31 of the Unemployment Insurance Act, 1971 Violate s. 15 of the Charter?

At this point, it will be helpful to set forth the relevant provisions of s. 31:

31. (1) Notwithstanding section 19, a benefit period shall not be established for a claimant if at the time he makes an initial claim for benefit he is sixty-five years of age or over.

(2) An insured person who makes a claim for benefit and proves that he

(a) is sixty-five years of age or over,

(b) has had twenty or more weeks of insurable employment

(i) in the fifty-two week period immediately preceding the week in which he makes the claim, or

(ii) in the period between the commencement date of his last benefit period and the week in which he makes the claim,

whichever period is the shorter, and

(c) has not previously been paid an amount under this subsection as it now reads or as it read before January 1, 1976,

shall, subject to sections 48 and 49, be paid an amount equal to three times the weekly rate of benefit provided under section 24.

(4) Any benefit period established for a claimant under this Part, if not earlier terminated under this Part, terminates at the end of the week in which he attains the age of sixty-five years. [Emphasis added.]

As can be seen, the effect of s. 31 was to remove applicants of age 65 or older from the normal benefit plan, and, provided they met the requirements, to provide them with a single, lump-sum retirement benefit in the amount of three times the weekly rate to which they would otherwise be entitled.

The Court of Appeal unanimously held that this provision violated s. 15(1) of the Charter, which states:

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.

There can be little doubt, after this Court's decisions in McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229, and Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, that s. 31 of the Act contravenes s. 15(1).

In Andrews, supra, a case which challenged the citizenship requirement for entry into the legal profession in British Columbia, this Court had occasion to address the meaning of the term "discrimination" as employed in s. 15(1). McIntyre J. (dissenting, but on this issue stating the opinion of the Court) stated, at pp. 174-75, that:

. . . discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities. . . Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

The approach taken in Andrews was followed by this Court in McKinney, supra, where it was held that, assuming university policies constituted government action, mandatory retirement of university faculty members would violate s. 15(1). Although the Court in McKinney ultimately upheld these policies, it was on the basis that the universities were not government actors and, more important for present purposes, that in the closed environment of a university, mandatory retirement could be justified under s. 1 of the Charter. There can be no doubt that if mandatory retirement provisions violate s. 15(1), then the denial of unemployment benefits to those over age 65 must violate s. 15(1) as well, and justification, if any, must be found under s. 1 of the Charter. Both policies make a distinction based upon the same "personal characteristic" attributed to an individual simply because he belongs to the same group of people ‑‑ namely, that because the individual is over the age of 65, he no longer forms part of the active working population. On this point, I would adopt the language of Lacombe J., supra, at p. 268:

The most harmful and singular aspect of section 31 of the Act is that it permanently deprives the applicant, and any other person of her age, of the status of a socially insured person by making her a pensioner of the state, even if she is still looking for a new job. Regardless of her personal skills and situation, she is as it were stigmatized as belonging to the group of persons who are no longer part of the active population. . . . section 31 in its present form perpetuates the same insidious stereotype applied when it was adopted in the Unemployment Insurance Act, 1971, namely that a person who is 65 years or older and has been unfortunate enough to lose his job can no longer be retrained for the labour market and must at that point become the complete responsibility of the special social assistance programs of the government . . . .

As in McKinney, supra, it was argued here that the policy is not motivated by stereotypical assumptions, but is based upon "administrative, institutional and socio-economic" considerations. In McKinney, however, I concluded (at p. 279) that "[t]his is all irrelevant, since as Andrews v. Law Society of British Columbia made clear . . . not only does the Charter protect from direct or intentional discrimination; it also protects from adverse impact discrimination, which is what is in issue here".

In my view, therefore, the age restriction that formerly existed in s. 31 of the Unemployment Insurance Act, 1971 was inconsistent with s. 15(1).

Does s. 31 Constitute a Reasonable Limit Under s. 1 of the Charter?

The general approach to be taken when determining whether a law constitutes a reasonable limit to a Charter right is well known, and has been stated by this Court in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, and many other cases. I will therefore proceed directly to the analysis itself.

Objectives

The first question to be asked is whether the objectives of the law are of sufficient importance to warrant overriding the Charter right. As Lacombe J. noted (at p. 262, citing Bliss v. Attorney General of Canada, 1978 25 (SCC), [1979] 1 S.C.R. 183, at pp. 185-86), the aim of the Unemployment Insurance Act, 1971 is, and always has been, "to create a social insurance plan to compensate unemployed workers for loss of income from their employment and to provide them with economic and social security for a time, thus assisting them in returning to the labour market".

While the Act itself dates from 1940, ineligibility for insurance benefits on grounds of age appeared for the first time in the 1971 version of the Act. In that year, individuals who had attained the age of 70 (or 65 in the case of those receiving a pension under the Canada Pension Plan or the Quebec Pension Plan) were excluded from receiving benefits under the Act. In 1975, the Act was again amended, and the age for ineligibility was lowered to 65 irrespective of entitlement to a pension.

In Lacombe J.'s view, the age ineligibility restriction was essentially designed to fulfill two purposes: first, to prevent those over the age of 65 from receiving a "double" return of both pension and unemployment benefits; and secondly, to prevent the abuse of the Act by those who had already determined to retire from the active labour force. I have little doubt that, having regard to the ultimate purpose of the Act to provide members of the active labour force with a measure of economic security while temporarily unemployed, these goals themselves, when taken at face value, are sufficient to meet the "objectives test".

In addition, the appellant contends that there is a further important objective here that the Court of Appeal has overlooked: to tailor benefits under the Act to fit in with the scheme of other social programs that the government has designed specifically to meet the needs of people over the age of 65.

It is fair to take into account the possibility that a group deprived of benefits under one Act may be receiving equal, or even greater, benefits under another. In other words, one cannot ignore the fact that the economic needs of those over the age of 65 are also addressed in legislative measures such as the Old Age Security Act, R.S.C., 1985, c. O‑9. Still, I doubt whether the objective of fitting the Act within the government's particular legislative scheme of social programs could, in itself, be sufficiently important to justify the infringement of a Charter right. In theory, the government could advance the same rationale to support virtually any piece of legislation that is challenged. In the end, the impact on the individual or group is what is of primary concern.

Assuming, then, that these are the three objectives of s. 31, it remains to consider whether the means employed by the legislature are proportional to these objectives.

Proportionality

Normally, the inquiry into proportionality is approached in three stages and asks, first, whether the measures chosen are rationally connected to the objective; second, whether they impair the Charter right as little as possible; and, third, whether the measures so severely infringe upon the right that this infringement outweighs the legislature's objective.

Conceding that s. 31 of the Act has three objectives, for the reasons described below, the law has not, in my view, been carefully designed to achieve any of these objectives. While it may be doubted whether s. 31 can be said to be rationally connected to all of these objectives, I prefer to focus on the second requirement, minimal impairment, for that is where the law clearly does not measure up to constitutional standards.

Minimal Impairment

In McKinney, supra, this Court emphasized that, when evaluating legislative measures that attempt to strike a balance between the claims of legitimate but competing social values, considerable flexibility must be accorded to the government to choose between various alternatives. In such a situation, since the court cannot easily ascertain with certainty whether the least restrictive means have been chosen, it is appropriate to accord the government a measure of deference. Following Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, the Court found that "the question is whether the government had a reasonable basis for concluding that it impaired the relevant right as little as possible given the government's pressing and substantial objectives": see McKinney, supra, at p. 286 (emphasis in original).

In McKinney, the reasonable basis criterion was satisfied, in that the Court found the universities could reasonably have concluded that a system of mandatory retirement at age 65 impaired the appellants' rights as little as possible, given the universities' objectives of permitting flexibility in resource allocation and faculty renewal, and of preserving academic freedom. The Court there emphasized that, in a closed system with limited resources, the mandatory retirement system permits the universities to maintain a degree of faculty renewal that is crucial to extending the frontiers of knowledge. It also noted that the system permits faculty members to enjoy a large measure of academic freedom with a minimum of supervision and performance review throughout the bulk of their career.

It should go without saying, however, that the deference that will be accorded to the government when legislating in these matters does not give them an unrestricted licence to disregard an individual's Charter rights. Where the government cannot show that it had a reasonable basis for concluding that it has complied with the requirement of minimal impairment in seeking to attain its objectives, the legislation will be struck down. For example, in Re Blainey and Ontario Hockey Association (1986), 1986 145 (ON CA), 54 O.R. (2d) 513, the Ontario Court of Appeal found that s. 19(2) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, which permitted discrimination in athletic organizations and activities on the basis of sex, could not be justified under s. 1. Writing for the majority, Dubin J.A. (as he then was) emphasized (at p. 530) that the sweeping effects of s. 19(2) were disproportionate to the ends sought to be achieved, and that the government had made no effort to justify this broad scope as a reasonable limit on the right to equality.

The challenged legislation in this case is similarly broad in scope, resulting in the curtailment of benefits to any individual who has attained the age of 65, irrespective of economic need or continued membership in the "active" working population. It is against this background that we must measure the various stated government objectives when determining whether these objectives are achieved in a manner that reasonably could be believed to constitute a minimal impairment of the individual's rights.

The first objective advanced in support of s. 31 is to prevent abuse of the Act by individuals who no longer intend to actively continue looking for work. If this is indeed an objective, no evidence has been put forward to show that those over age 65 abuse the Act any more than those in other age groups, or that this abuse is any more difficult to detect. The burden, of course, rests upon the government to adduce such evidence. The government has not demonstrated why, for example, abuse of the Act could not be prevented through the application of the other provisions of the Act regarding eligibility, which have been designed to ensure that only those who make an active effort to seek work can receive benefits. See, for example, Unemployment Insurance Act, 1971, ss. 17 and 18 (now R.S.C., 1985, c. U-1, ss. 6 and 7).

While the appellant argues that the Act simply takes into account the reality that the majority of people retire at age 65, the Court of Appeal, supra, at p. 271, concluded that the evidence adduced by the parties indicates that retirement is related more to financial incentive than to any particular age, and that the rate of retirement does not accelerate appreciably at age 65. I conclude, therefore, that this first objective is not being achieved in a manner which comports with the requirement of minimal impairment.

The second objective put forth in support of s. 31 is to prevent the double payment of benefits that would result from an individual's collecting both pension income and unemployment insurance. As the Court of Appeal points out, however, this objective could have been achieved by simply deducting pension receipts from unemployment benefits, as has been done since January 5, 1986 (Unemployment Insurance Regulations, SOR/86-58) under s. 57(2) of the regulations for persons under the age of 65. Under s. 57(2), these people continue to remain eligible to collect unemployment benefits. I find, therefore, that s. 31 is not carefully designed to achieve this objective, or at the very least, does not impair the respondent's rights in a minimal way.

The third objective, urged upon this Court by the appellant, is the goal of fitting the Act within the government's particular legislative scheme, which provides alternate benefits to people over the age of 65. The appellant argues that, taken together, these acts make up a rational scheme that takes account of the fact that the majority of people retire at age 65, and provides benefits accordingly.

One must not, however, lose sight of the fact that the overall objective of this particular Act is to provide a temporary sanctuary for those wishing to remain in the active labour force, but who are unable for the moment, to find employment. The inquiry, therefore, should be whether that objective is furthered in any way by denying benefits to individuals over 65, and whether that denial is compensated for by the provisions of other Acts. As Lacombe J. properly notes, supra, at p. 272, there was no evidence put forth to show that the government could not afford to extend benefits to those over 65. More significantly, there is also no evidence to show that any of the other Acts attempt to fill the gap by addressing the problem of sixty-five-year-olds who must keep working because their pension is insufficient or because they do not receive a pension at all. The most unfortunate aspect of s. 31 is that it has the effect of denying unemployment benefits precisely to those who need them most. The respondent in this case, who has been living on a pension income of less than $500 per month, provides a good example. I cannot accept the appellant's suggestion that the needs of the respondent and those in her position are best looked after by this co-ordinated government scheme.

As I indicated at the outset of these reasons, the government has chosen to alter the Unemployment Insurance Act, 1971 by repealing s. 31, retroactive to the date that the decision of the Federal Court of Appeal in this case was entered, thereby removing the age ineligibility restriction from the Act altogether. It is worth noting that this action finally brought the federal government's policy into line with recommendations made by the various government commissions that had studied the effects of the Act, and ultimately called for the abolition of the age requirement: see the Court of Appeal's reasons, at p. 265.

For all of the above reasons, I believe that s. 31 cannot satisfy the requirement of minimal impairment. Even allowing the government a healthy measure of flexibility in legislating in this area, the complete denial of unemployment benefits is not an acceptable method of achieving any of the government objectives set forth above, all of which could easily be attained by less intrusive means.

In my view, therefore, s. 31 of the Unemployment Insurance Act, 1971 is inconsistent with s. 15(1) of the Charter, and is not saved by s. 1.

Disposition

I would allow the appeal, solely on the ground that, under the circumstances in which this appeal arose before it, the Federal Court of Appeal did not have the jurisdiction to finally determine that the former s. 31 of the Unemployment Insurance Act, 1971 is inconsistent with s. 15(1) of the Charter. The appropriate forum for the adjudication of this constitutional question, the principles governing which are set forth in these reasons, is the umpire.

//L'Heureux-Dubé J.//

The following are the reasons delivered by

L'Heureux-Dubé J. -- I have read the opinion of my colleague Justice La Forest and I agree with the result he has reached. I am also in substantial agreement with his reasons, although I would like to add one comment.

Justice Wilson, with whom I concurred, qualified her concurring opinions in Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 63 (SCC), [1990] 3 S.C.R. 570, and in the case released with this one, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 000, to leave one question open. In Douglas College, she concurred with La Forest J. but with the following comment at pp. 606-7:

I would, however, prefer to leave open the question whether a tribunal may have such jurisdiction even in the absence of specific provisions in the governing legislation and in the collective agreement such as those heavily relied on by [La Forest J.].

In Cuddy Chicks, Wilson J. remarks at p. 000:

The absence of legislative authority to deal with the Charter issue in the governing statute is not, in my view, necessarily determinative of a tribunal's jurisdiction, since the authority and obligation to apply the law may be grounded elsewhere: McLeod v. Egan, 1974 12 (SCC), [1975] 1 S.C.R. 517.

The present case concerns the Board of Referees established under the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, (now R.S.C., 1985, c. U-1) ("the Act"). As La Forest J. observes at p. 000 of his reasons, the Board of Referees is an administrative tribunal whose legal jurisdiction is not specifically articulated in the Act. I agree with him that, in general, the mandate given to a board by the legislature will usually be the most salient factor in determining whether the tribunal has the power to decide questions under the Canadian Charter of Rights and Freedoms. My colleague concludes on this point (at p. 000):

Therefore, where the legislature has already spoken definitively on the question, that will normally be the end of the inquiry. Where it has not, it will be necessary to examine other factors as well.

I agree with this statement. At the same time, however, I would like to leave explicitly open the question of what "other factors" might be relevant to the determination of a tribunal's jurisdiction over subject matter, particularly in the absence of other related tribunals established under the same legislation which are permitted to interpret the Charter. Like Wilson J., I do not believe that the legislation will necessarily be determinative of the administrative tribunal's jurisdiction over the constitutional subject matter argued. Where the statute is silent or unclear, there are many "other factors" to be considered when determining whether the constitutional subject matter should properly be considered by an administrative tribunal. Among the possibilities, as Wilson J. notes, would be an approach similar to that taken by this Court in McLeod v. Egan, 1974 12 (SCC), [1975] 1 S.C.R. 517. These "other factors" may be taken up in an appropriate case.

Subject to these comments, I agree with La Forest J. and would allow the appeal as he proposes.

Appeal allowed.

Solicitor for the appellants: John C. Tait, Ottawa.

Solicitors for the respondent: Campeau, Ouellet, Nadon & Lussier, Montréal.

Solicitors for the intervener Cuddy Chicks Limited: Fasken, Campbell, Godfrey, Toronto.

Solicitors for the intervener the Ontario Labour Relations Board: Gowling, Strathy & Henderson, Toronto.

Solicitors for the intervener United Food and Commercial Workers International Union, Local 175: Caley & Wray, Toronto.