A-507-89
Attorney General of Canada (Applicant)
v.
David George (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. GEORGE
(C.A.)
Court of Appeal, Heald, Desjardins and Linden,
JJ.A.—St. John's, Newfoundland, October 10;
Ottawa, October 29, 1990.
Constitutional law — Charter of Rights — Equality rights
— Application to set aside Tax Court decision declaring
Unemployment Insurance Act, s. 3(2)(b) inoperative as incon
sistent with Charter, s. 15 — According to s. 3(2)(b) employ
ment of casual nature other than for employer's trade or
business "excepted employment" — As such not insurable —
Tax Court finding discrimination as application of s. 3(2)(b)
creating two classes of employees depending on who is
employer — Application allowed — S. 15 contemplating
distinction based on grounds relating to personal characteris
tics of individual or group — Must also impose disadvantages
on such individuals or groups not imposed upon others —
Disadvantage created by s. 3(2)(b) related to employment, not
personal characteristics of individual or group — Neither
enumerated ground in s. 15 nor analogous thereto.
Unemployment insurance — Minister denying application
for benefits in that employment as carpenter building homes
for three individuals "excepted employment" under Act, s.
3(2)(6), and not insurable — Under s. 3(2)(b), employment of
casual nature other than for employer's trade or business
"excepted employment" — Tax Court's declaration s. 3(2)(b)
inoperative as inconsistent with Charter, s. 15 set aside.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 15(1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Unemployment Insurance Act, R.S.C., 1985, c. U-1, s.
3(1),(2)(b).
CASES JUDICIALLY CONSIDERED
APPLIED:
Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R.
289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255;
R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C.
(3d) 8; 69 C.R. (3d) 97; 39 C.R.R. 306; 96 N.R. 115; 34
O.A.C. 115; Reference Re Workers' Compensation Act,
1983 (Nfld.), [1989] 1 S.C.R. 922; (1989), 76 Nfld. &
P.E.I.R. 181; 56 D.L.R. (4th) 765; 235 A.P.R. 181; 96
N.R. 227.
COUNSEL:
Roger Taylor and Valerie A. Miller for
applicant.
W. Gerard Gushue for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
W. Gerard Gushue, Goose Bay, Newfound-
land, for respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.A.: This is a section 28 application to
review and set aside a decision of a deputy judge of
the Tax Court of Canada.
During the period from June 24, 1985 to Octo-
ber 25, 1985, the respondent was employed as a
carpenter by three different persons during the
construction, in each case, of that individual's
personal residence. None of these individuals were
in the construction business — one was the manag
er of a golf club, one was a teacher, while the other
person was an oil company manager. Subsection
3(1) of the Unemployment Insurance Act [R.S.C.,
1985, c. U-1] provides:
3. (1) Insurable employment is employment that is not
included in excepted employment ...
Paragraph 3(2)(b) enumerates one of the catego
ries of ."Excepted employment", that is, employ
ment not insurable under the Act as "employment
of a casual nature other than for the purpose of the
employer's trade or business".
The respondent applied for unemployment in
surance after completing his final period of
employment in 1985 as set out supra. His applica
tion was refused by the Minister on the basis that
his employment in 1985 was excepted from insura-
bility pursuant to paragraph 3(2)(b). This decision
was appealed to the Tax Court of Canada. The
learned Deputy Judge of the Tax Court allowed
the appeal, reversed the determination of the Min
ister and declared paragraph 3(2)(b) of the Act
inoperative as being inconsistent with subsection
15(1) of the Charter [Canadian Charter of Rights
and Freedoms, being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].'
He also decided that paragraph 3(2)(b) could not
be seen as a demonstrably justified limitation pur
suant to section 1 of the Charter.
Counsel for the applicant submits that para
graph 3(2)(b) of the Act is not inconsistent with
subsection 15(1) of the Charter and that the
learned Deputy Judge erred in so concluding.
The Deputy Judge held that there was "dis-
crimination in the application of section 3(2)(b) as
it creates two classes of employees depending on
who is their employer." (Case, at page 168.) In his
view, this was "unequal treatment" since another
carpenter like the respondent who was doing the
same work for a contractor and was paid by the
contractor would be covered by unemployment
insurance. In his view, such a circumstance was
sufficient to invoke the equality provisions of sub
section 15 (1) of the Charter.
With deference, I am unable to agree that,
based on the relevant jurisprudence, such a blanket
application of subsection 15(1) is permissible. The
proper approach for the application of subsection
15(1) was outlined by Mr. Justice McIntyre in the
Andrews case. 2 The test articulated in Andrews is
a twofold test. The first branch is set out by Mr.
Justice McIntyre, at page 182:
' 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.
2 Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143.
A complainant under s. 15(1) must show not only that he or she
is not receiving equal treatment before and under the law or
that the law has a differential impact on him or her in the
protection or benefit accorded by law but, in addition, must
show that the legislative impact of the law is discriminatory.
Once the first stage of the test has been met it
becomes necessary to deal with the second aspect
of the test. That aspect was stated at pages 174-
175 of Andrews, supra, where Mr. Justice McIn-
tyre said:
I would say then 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 disad
vantages on such individual or group not imposed upon others,
or which withholds or limits access to opportunities, benefits,
and advantages available to other members of society. Distinc
tions 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.
Accordingly, it is clear that the "discrimination"
contemplated by section 15, is a distinction based
on grounds relating to personal characteristics of
an individual or group. It must also result in the
imposition of disadvantages on such individuals or
groups which is not imposed upon others. Thus
only certain legislative distinctions attract the
scrutiny of section 15, namely those involving the
enumerated or analogous grounds. The distinction
here in issue is clearly not a ground enumerated in
section 15 nor can it be said to be in the analogous
category. In Andrews Mr. Justice McIntyre cha
racterized this disadvantaged category as encom
passing discrete and insular minorities. Madame
Justice Wilson, also in Andrews, had some percep
tive comments to make concerning this matter as
well. At pages 152-153, she wrote:
I believe also that it is important to note that the range of
discrete and insular minorities has changed and will continue to
change with changing political and social circumstances. For
example, Stone J. writing in 1938, was concerned with reli
gious, national and racial minorities. In enumerating the specif
ic grounds in s. 15, the framers of the Charter embraced these
concerns in 1982 but also addressed themselves to the difficul
ties experienced by the disadvantaged on the grounds of ethnic
origin, colour, sex, age and physical and mental disability. It
can be anticipated that the discrete and insular minorities of
tomorrow will include groups not recognized as such today. It is
consistent with the constitutional status of s. 15 that it be
interpreted with sufficient flexibility to ensure the "unremitting
protection" of equality rights in the years to come.
Thus, the conclusion of Madame Justice Wilson is
to the effect that section 15 must remain open-
ended in order to accommodate disadvantaged
groups, not presently ascertained, which an evolv
ing society is likely to identify in the future.
However, I am not persuaded that this respond
ent is entitled to the protection of section 15 in the
circumstances of this case. The distinction in law
created by paragraph 3(2)(b) creates a disadvan
tage to him based on the circumstances and condi
tions of his employment, and entirely unrelated to
his personal characteristics or to the personal char
acteristics of the disadvantaged group of which he
has become a member by the enactment of para
graph 3(2)(b). There is nothing on this record to
show that individuals in this group share any
personal characteristics or are subject to any dis
advantage separate and apart from the disadvan
tage related to their employment. Accordingly I
conclude that the basis of distinction created by
paragraph 3(2)(b) is not analogous to any of the
characteristics identified in subsection 15(1) of the
Charter.
Jurisprudence subsequent to the Andrews case
lends additional support for this view of the
matter. In the case of R. v. Turpin,' Madame
Justice Wilson had the occasion to comment on
the principles established in Andrews. Under the
Criminal Code [R.S.C. 1970, c. C-34], in all
provinces except Alberta, an accused charged with
murder must be tried by a judge and jury. In
Alberta, individuals charged with the same offence
were given an election to be tried by a judge alone.
In Turpin it was argued that, in these circum
stances, the appellants' equality rights under sec
tion 15 of the Charter were violated. In delivering
the reasons of the Court, Wilson J. said at pages
1332-1333:
The appellants claim that because they are accused of one of
the indictable offences listed in s. 427 of the Criminal Code but
do not have an opportunity, as do persons charged with the
same offence in Alberta, to be tried by a judge alone, they are
3 [1989] 1 S.C.R. 1296.
victims of discrimination. I disagree. In my respectful view, it
would be stretching the imagination to characterize persons
accused of one of the crimes listed in s. 427 of the Criminal
Code in all the provinces except Alberta as members of a
"discrete and insular minority". I hasten to add that this
categorization is not an end in itself but merely one of the
analytical tools which are of assistance in determining whether
the interest advanced by a particular claimant is the kind of
interest s. 15 of the Charter is designed to protect. It is a means
of ensuring that equality rights are given the same kind of
broad, purposive interpretation accorded to other Charter
rights: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v.
Big M Drug Mart Ltd., supra. Differentiating for mode of trial
purposes between those accused of s. 427 offences in Alberta
and those accused of the same offences elsewhere in Canada
would not, in my view, advance the purposes of s. 15 in
remedying or preventing discrimination against groups suffer
ing social, political and legal disadvantage in our society. A
search for indicia of discrimination such as stereotyping, his
torical disadvantage or vulnerability to political and social
prejudice would be fruitless in this case because what we are
comparing is the position of those accused of the offences listed
in s. 427 in the rest of Canada to the position of those accused
of the offences listed in s. 427 in Alberta. To recognize the
claims of the appellants under s. 15 of the Charter would, in my
respectful view, "overshoot the actual purpose of the right or
freedom in question": see R. v. Big M. Drug Mart Ltd., at p.
344.
A third decision of the Supreme Court of
Canada is also instructive on this issue. I refer to
the Reference Re Workers' Compensation Act,
1983 (Nfld.) 4 where Mr. Justice La Forest deliv
ered the unanimous judgment of the Court. At
page 924 he said:
We are all of the view that The Workers' Compensation Act,
1983, S.N. 1983, c. 48, which provides that the right to
compensation provided by that Act is in lieu of all rights and
actions to which a worker or dependents might otherwise be
entitled, does not, in these circumstances, constitute discrimina
tion within the meaning of s. 15(1) of the Canadian Charter of
Rights and Freedoms as elaborated by this Court in Andrews v.
Law Society of British Columbia, [1989] 1 S.C.R. 143, subse
quent to the filing of a notice of appeal as of right. The
situation of the workers and dependents here is in no way
analogous to those listed in s. 15(1), as a majority in Andrews
stated was required to permit recourse to s. 15(1). The appeal is
accordingly dismissed.
In my view the factual situation at bar is not
dissimilar to that in the Newfoundland Workers'
Compensation Act, 1983 (Nfld.) case. The alleged
discrimination there relates to circumstances of
employment or employment status. In the case at
° [1989] 1 S.C.R. 922.
bar, the distinction also relates to employment. As
noted by counsel for the applicant, the "classes"
here are classes of employment, not classes of
people. Since this respondent is not linked with a
contractor's employees by any personal character
istics as individuals or as members of a group, it
follows that the respondent is not entitled to
Charter protection under subsection 15(1).
For these reasons I would allow the section 28
application and set aside the decision of the Tax
Court of Canada herein dated the 18th day of
October, 1989.
DESJARDINS J.A.: I concur.
LINDEN J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.