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Canadian Charter - Right to equality - Maternity benefits - Whether the provisions of the Employment Insurance Act which grant maternity benefits only to biological mothers discriminate against adoptive mothers within the meaning of s. 15 of the Charter - Whether the s. 15 test requires clarification or modification - Employment Insurance Act, S.C. 1996, c. 23 - Canadian Charter of Rights and Freedoms, s. 15.

Under the Employment Insurance Act, a biological mother can combine 15 weeks of maternity benefits with 35 weeks of parental benefits, allowing her to spend a total 50 weeks with her newborn child, while adoptive parents are limited to 35 weeks of parental benefits. After adopting each of her two children, Patti Tomasson applied to the Employment Insurance Commission for maternity benefits and parental benefits and on both occasions she was granted parental benefits but denied maternity benefits. She appealed the Commission’s respective decisions to the Board of Referees which upheld the Commission’s decisions. Ms. Tomasson then challenged the constitutionality of the legislation in an appeal to an umpire, alleging the provisions of the Act discriminated against adoptive mothers within the meaning of s. 15 of the Charter.

The umpire appointed under the Act dismissed Ms. Tomasson’s challenge to the legislation on the basis that the decision of the Ontario Court of Appeal in Schafer v. Canada (Attorney General) (1997), 149 D.L.R. (4th) 705 (leave to appeal to the S.C.C. denied January 29, 1998), was binding. The Federal Court of Appeal dismissed Ms. Tomasson’s application for judicial review of the Umpire’s decision.