December 2005: Protecting Parental Leave Benefits

Supreme Court ruling supports renewed calls for EI reform
December 1, 2005

In a rare unanimous decision, the Supreme Court of Canada recently confirmed the constitutionality of the federal government's provision of parental benefits under Employment Insurance (EI). The federal government now has no excuse not to do a better job of ensuring that this essential social program is meaningful for all employed women and men.

The Supreme Court decision overturns the 2004 Quebec Court of Appeal ruling that the 1940 constitutional amendment granting jurisdiction over employment insurance to the federal government did not also transfer power over parental leave benefits. The Government of Quebec had sought such a ruling in the face of the Chrétien government’s stonewalling over transferring adequate money from federal EI funds to support a new provincially administered—and more generous—parental benefits program for Quebec workers.

With the Supreme Court decision, women—over 90% of those who access parental benefits—can breathe a sign of relief. The new Quebec program is scheduled to begin January 2006: Quebec and Ottawa struck the necessary agreement last March. And women in the rest of Canada, with less generous provincial governments, have retained a critical national program.

But sighs of relief must turn quickly to renewed calls for the federal government to live up to its full obligations to women. And here the Supreme Court’s judgment is again instructive.

First, the Court explicitly underscores the social nature of unemployment insurance: that EI provision for breaks in paid employment can be responsive to changes in the workplace. As the ruling states, “the social nature of unemployment insurance requires that Parliament be able to adapt the Plan to the new realities of the workplace.” When maternity benefits were first introduced in 1971 as part of the then Unemployment Insurance scheme, just over one-third of women with children under age 16 were employed. In the intervening 30 years or so, women’s involvement in the paid labour force has expanded. In 2005, we know that most women were engaged in the work force for some significant period in their lives, earning income their families need. Adequate parental leave benefits must be part of this new reality.

The Court goes on to emphasize the responsibility the federal government bears to enable women's equality in Canada’s paid labour force, noting this responsibility tracks the rise in women’s involvement in paid employment and thus configures the government’s jurisdiction over employment insurance.

The first paid maternity benefits represented a signal victory for Canadian women’s labour rights and a turning-point in Canadian social policy. For the first time, mothers had access to social insurance wage replacement benefits in respect of their distinct childbearing/rearing obligations. In 2003, 65% of employed mothers with a child 12 months of age and younger received some EI maternity or parental paid leave benefits.

Maternity/parental benefits play a critical role in securing women’s equality by supporting women’s dual responsibilities for family and paid work. And the federal government, with constitutional authority to provide these benefits, bears a responsibility to do so adequately and fully.

The sad reality is that, while provisions for accommodating the caregiving responsibilities of Canada’s workers (in respect of both maternity/parental and compassionate care benefits) stand out as one arena in which income benefits have actually expanded, these benefits remain inaccessible to many Canadian women. Too many working women remain uncovered by the plan, and too many women who are covered can’t afford to take the full leave on the miserly benefit level provided.

Moreover, the pattern of exclusion from EI reinforces social and economic inequalities among women, with Aboriginal, visible minority, and young mothers most likely to be effectively denied the expanded provisions enjoyed by the majority. These inequities are stark enough that they warranted concerned comment by the United Nations Committee for the Elimination of Discrimination Against Women in 2003.

The federal government’s equality obligations under its Human Rights Code, the Canadian Charter of Rights and Freedoms, and international human rights treaties require a better job of keeping pace with changing workplace and family realities. The following reforms are essential:

  • Better access for workers in part-time and part-year jobs, most of them women, through lowering the qualifying conditions for parental and regular EI benefits, for example, to 360 hours as recommended by a Parliamentary Committee;
  • Extension of EI special benefit coverage to self-employed workers, as Quebec has begun to do with parental benefits;
  • Reinstatement of government contributions to the EI program to help pay for benefits; the federal government has not contributed since 1989;
  • A higher benefit rate (now only 55% of earnings up to a maximum of $413 per week) for all EI benefits including parental benefits, again as recommended by a Parliamentary Committee, and abolition of the two-week waiting period;
  • New provisions that ensure that workers laid off in the months prior to or following a parental leave can get EI benefits for both interruptions of earnings.

Human Resources Minister Belinda Stronach, responding to the Supreme Court ruling, confirmed that the federal government has the “responsibility to evolve EI as society evolves.”

Canadian women will hold her to her word.

(Margot Young is an associate professor of law at the University of British Columbia. Jane Pulkingham is associate professor of sociology at Simon Fraser University and chair of the Department of Sociology and Anthropology. Both are Research Associates with the B.C. Office of the CCPA.)



“Sighs of relief over this Court ruling must turn quickly to renewed calls on the federal government to live up to its full obligations to women.”