Most claims under the Charter‘s equality provision, s. 15(1), allege violations of the principle that like cases ought to be treated alike. So, for example, the appellant A. in the Supreme Court’s decision on the post-separation rights of common law spouses in Québec argued that common law couples are really like married ones, and should not be treated differently by the law. But some equality cases involve a corollary claim: that different cases ought to be treated differently. The legal framework applicable to both sorts of cases is the same, as the Federal Court of Appeal’s recent decision in Martin v. Canada, 2013 FCA 15, illustrates.
After Mr. Martin’s spouse gave birth to twins, both she and he applied for the 35 weeks of parental benefits which the Employment Insurance Act, S.C. 1996, c. 23, entitles the parents of newborn or newly-adopted children to divide up between themselves. Her application was granted; his was rejected because the benefits were, accordingly, going to be paid to to her. He appealed, eventually all the way up to the Federal Court of Appeal.
One of Mr. Martin’s claims was that the statute, properly understood, entitled both him and his wife to the full 35 weeks of benefits. The Court rejected it, saying that such an interpretation would fly in the face of Parliament’s intent, which was not to provide a benefit for, or contribute towards expenses associated with, the birth of a child, but to compensate a parent’s loss of income due to taking time off work.
Mr. Martin’s second argument was that the Act, if it did not provide double benefits to parents of newborn twins, was unconstitutional, because treating such parents as if they had a single child was a violation of the Charter‘s equality guarantee. The Court applied the familiar framework set out in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483. The Court proceeded did not address the first question, whether the impugned law created a distinction on the basis of a prohibited or analogous ground, but proceeded on the assumption that it was affirmative. As I suggested above, the gist of Mr. Martin’s challenge wasn’t really that the law was making an undue distinction―on the contrary, it was that the law failed to make a necessary one. But the Court seems to assume that there is no difference between the two sorts of complaints.
In both cases, then, the second question to address is whether the distinction (or lack thereof!) is discriminatory―whether it created a disadvantage by perpetuating prejudice or stereotyping. It is here, said the Court, that Mr. Martin’s challenge failed. Analyzing the contextual factors which can indicate that a legislative distinction is discriminatory, it observed, first, “that that there was no evidence demonstrating that parents of twins were subject to unfair treatment in society and that they had consequently experienced historical disadvantage, stereotyping, vulnerability or prejudice based on their status” (par. 116). Nor was the legislative scheme drawn on the basis of stereotypes unrelated to the real needs of the claimant and those in his position. The legislative scheme is not intended to meet anyone’s individual needs. Indeed, “it is impossible for” it to do so, given the variety of individual and family circumstances that can arise (par. 124). The third factor, the law’s ameliorative effect, was agreed to be irrelevant. Finally, the Court agreed that the fourth and last factor, the nature of the interest at stake, weighed against Mr. Martin, since his interest was a purely economic one. His fundamental status in Canadian society is not called into question by Parliament’s failure to grant parents of twins additional benefits.
This all seems straightforward enough. The case isn’t the most interesting when it comes to the application of the equality test, but I thought I’d highlight the fact that it applies the test normally used in “treating like cases alike” claims in a “treating different cases differently” one.
Double Aspect 
There are several problems with the judgement that we will try to correct at the Supreme Court. The first is with respect to historical disadvantage. It was blow out of proportion in importance. If a government policy decided to give half the benefits to people with blue eyes than to others, would it be a sufficient defense to say that people with blue eyes did not suffer historical disadvantage? Clearly not. Secondly, while the act does not consider many things about a person’s individual needs, it does recognize at the most fundamental of levels that a parent can get 35 weeks of benefits to care for a newborn child. Why does this not apply to parents of multiples? The pregnancy is an irrelevant consideration in allocating parental benefits, just as the color of the eyes of the claimant would be. Finally, the interest affected is hardly simply financial. EI Parental benefits is the most important Canadian program to help families balance the needs of working, financial security and providing care to newborn children. Parental benefits allow parents to spend time with their newborn children. To reduce that to a question of money is really missing the point. Christian Martin