The Quebec Court of Appeal ruled Jan. 27, 2004 that maternity and parental leave provisions fall within the jurisdiction of provincial governments and exceed the exclusive federal jurisdiction over employment insurance. On Feb. 23, after intensive lobbying by labour and women's organizations, the federal government filed an appeal of the decision to the Supreme Court of Canada. That appeal was strongly opposed by Quebec organizations, and just as strongly supported by those from the rest of Canada.
The case originated in a dispute between the federal and Quebec governments around section 69(2) of the Employment Insurance Act which provides a kind of opting-out with compensation for provinces that have programs that replace in whole or in part the types of benefits (maternity/parental, sickness, injury and others) offered under federal legislation. The opting-out takes the form of a reduction in premiums paid by employers and employees, which the province can recoup for its own benefits program. The special benefits at the centre of the dispute concerned maternity and parental leave provisions of the EI program.
The mechanism provided for in this section will be familiar to union members who were active in 1971 when sickness and pregnancy benefits were first introduced into the Unemployment Insurance Act. At that time, the federal government wanted to encourage employers who already had such plans in place to retain them. It therefore provided for a reduction in employer and employee contributions in a section that is now 69(1).
Rather than simply reduce the premiums, the reduction takes the form of a rebate that goes to an employer to be applied to some project or activity the employer and employees mutually determine. In the case of my university, the rebate results in a $50,000 annual contribution to the York University Faculty Association Trust, which in turn helps fund the faculty club.
Under pressure from a coalition of labour, community and women's organizations, then premier Lucien Bouchard announced in 1996 that Quebec would make use of this provision in the EI Act to help put in place a provincial program of parental leave. An initial round of negotiations took place in the wake of the near federalist defeat in the 1995 Referendum, at a time when Parliament was passing resolutions recognizing Quebec as a distinct society and approving the federal withdrawal from training and housing.
At this time, the federal position, as communicated by the Human Resources Development Ministry, was that Quebec could opt out of the federal program entirely in order to create a parental leave program fully integrated with the rest of its family policy, which included $5-a-day child care. Negotiations broke down over the formula for calculating the premium reduction, not over the principle.
Quebec attempted to restart negotiations after the federal government extended parental benefits to 35 weeks in 2000. From the correspondence between the two governments submitted to the Quebec Court of Appeal by the provincial government, it appears Jane Stewart, then HRDC Minister, did not even respond to letters from Quebec ministers between February 2000 and October 2001.
When she did respond, it was to articulate an entirely new position - that Quebec's parental leave program should take the form of a top-up and supplement to the federal program. In frustration over its inability to restart negotiations, Quebec turned to the court for a decision on the constitutionality of the federal government's maternity and parental leave benefits under the EI Act.
The Quebec Court of Appeal ruling is an odd one, containing giant leaps of legal reasoning and outdated notions of women's role in the labour force. On reading the decision, it is hard not to feel irritated with both the federal and Quebec governments. In a game of jurisdictional chicken, one government was prepared to put at risk an essential component of the very progressive Quebec family policy and the other the maternity and parental benefits within EI that labour and women's organizations fought for over many decades.
The Quebec decision is advisory and does not strike down the federal law; that would require a separate legal case challenging the provisions of the law. If that were to happen, the Quebec Court of Appeal ruling would be treated as a precedent in Quebec and courts in the rest of Canada would be free decision does not prevent negotiations between Quebec and the federal government under section 69(2) of the current Act and these are already underway.
However, an appeal to the Supreme Court is necessary to confirm the scope of federal jurisdiction and to ensure politicians do not use the Quebec ruling to weaken or prevent improvements to the maternity and parental provisions in the EI Act.
Barbara Cameron is an associate professor of political science in the Atkinson School of Social Sciences at York University and is a member of CAUT's Status of Women committee.
The views expressed are those of the author and not necessarily those of CAUT.