Schachter v. Canada [1992] 2 S.C.R. 679: Use of the supremacy remedy clause and the fundamental rights remedy clause

Respondent's spouse received 15 weeks of maternity benefits in 1985 under s. 30 of the Unemployment Insurance Act, 1971. Although respondent had intended to stay home with the newborn as soon as his spouse was able to return to work after the birth, he ultimately took three weeks off without pay. He had first applied for benefits under s. 30 in respect of the time he had to take off work, but, since s. 30 was limited to maternity benefits, modified his application to one under s. 32 for "paternity benefits". Section 32 provides for parental benefits for adoptive parents for 15 weeks following the placement of their child with them. These benefits are to be shared between the two parents in accordance with their wishes. The respondent's application was denied on the basis that he was "not available for work", a ground of disentitlement for all applicants except those applying for maternity benefits or adoption benefits.

The respondent appealed the decision to a Board of Referees. The appeal was dismissed and the respondent made a further appeal to an Umpire. This appeal was never heard as the respondent made known his intention to raise constitutional issues and it was agreed by the parties that the Federal Court, Trial Division was a better forum for resolving the constitutional issues. The trial judge found a violation of s. 15 of the Canadian Charter of Rights and Freedoms in that s. 32 discriminated between natural parents and adoptive parents with respect to parental leave. He granted declaratory relief under s. 24(1) of the Charter and extended the same benefits to natural parents as were granted to adoptive parents under s. 32. The violation of s. 15 was subsequently ceded by appellants. The Federal Court of Appeal upheld the trial judge's decision.

The impugned provision was since amended to extend parental benefits to natural parents on the same footing as they are provided to adoptive parents for a period totalling 10 weeks rather than the original 15.

The constitutional questions stated in this Court queried: (1) whether s. 52(1) of the Constitution Act, 1982 required that s. 32 of the Unemployment Insurance Act, 1971, given an unequal benefit contrary to s. 15(1) of the Charter, be declared of no force or effect, and (2) whether s. 24(1) of the Charter conferred on the Federal Court Trial Division the power to order that natural parents are entitled to benefits on the same terms as benefits are available to adoptive parents under s. 32.

Held: The appeal should be allowed. The first constitutional question should be answered in the affirmative, leaving open the option of suspending the declaration of invalidity for a period of time to allow Parliament to amend the legislation in a way which meets its constitutional obligations. The second constitutional question should be answered in the negative. Section 24(1) of the Charter provides an individual remedy for actions taken under a law which violate an individual's Charter rights. A limited power to extend legislation is available to courts in appropriate circumstances by way of the power to read in derived from s. 52 of the Constitution Act, 1982.

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