Reference re Employment Insurance Act (Can.), ss. 22 and 23

Canada’s Constitution Act of 1867 (the constitution) initially classified unemployment-insurance matters as property, civil, or purely local or private matters that §§ 92(13) and 92(16) of the constitution reserved to exclusive provincial jurisdiction. However, in 1940, during a sustained period of high unemployment, the provinces agreed to amend the constitution by adding § 91(2A), which transferred unemployment insurance to exclusive federal control. The purpose of federal unemployment insurance was always to replace the interrupted income of those individuals temporarily unable to work, or to find work, and to prepare those individuals for re-entry into the workforce. Federal unemployment-insurance legislation, codified as the Employment Insurance Act (EIA), was amended over time to keep up with the needs of an ever-changing workforce. Most recently, the EIA had been amended to add §§ 22 and 23 (the EIA amendment), which extended coverage to expectant mothers on maternity leave and mothers or fathers of newborn or newly adopted children. The amendment reflected emerging social concerns for supporting workers as they prepared for childbirth or the arrival of a new family member. The attorney general of Quebec (plaintiff) challenged the EIA amendment’s constitutionality. The federal court of appeal ruled that the EIA amendment constituted social-policy legislation infringing on Quebec’s exclusive jurisdiction under §§ 92(13) and 92(16) of the constitution. The attorney general of Canada (defendant) appealed the ruling to Canada’s supreme court.