Past Legal Challenges

The Attorney General of Canada v. Kelly Lesiuk

The introduction of more restrictive eligibility rules in the 1996 Employment Insurance (EI) Act has been a major step backward for unemployed people across Canada. Between 1989 and 1999, the percentage of unemployed people who were receiving benefits dropped dramatically from 74% to 37%. Over the same period, a huge surplus has accumulated from the premiums paid by workers who are increasingly unable to access any benefits.

Part-time and low-income workers have been particularly hard hit by the change from using insurable weeks to insurable hours as the basis for meeting minimum eligibility requirements. Women constitute 70% of the growing part-time labour force in part because they still perform two-thirds of unpaid work in the home and are overwhelmingly responsible for childcare. As a result, in 1999, only 32% of unemployed women in Canada qualified for benefits – 10% lower than the comparable figure for men.

In 1998, Kelly Lesiuk moved from Brandon to Winnipeg, Manitoba where her husband had recently found employment. For almost five years prior to the move, Ms Lesiuk had been a part-time registered nurse at the Brandon General Hospital. She was also the primary caregiver for the couple’s daughter. When Ms Lesiuk applied for EI benefits shortly after arriving in Winnipeg, the Employment Insurance Commission determined that she had worked fewer than 700 insurable hours in the previous 52 weeks and therefore could not qualify for regular, pregnancy or sickness benefits. Under the new EI rules, she was 33 hours short. Significantly, under the old Unemployment Insurance Act she would have had enough insurable weeks to qualify.

Assisted by the Community Unemployed Help Centre in Winnipeg and the Public Interest Law Centre, Ms Lesiuk appealed the Commission’s decision to the Employment Insurance "Umpire", arguing that the new EI eligibility rules discriminated against women and parents. In March 2001, she won a dramatic victory when the rules were found to violate the equality guarantee in section 15 of the Charter of Rights and Freedoms.

Kelly Lesiuk’s case represents an important achievement for the equality rights of unemployed women in Canada. Finally, the federal government is being taken to task for its punitive, regressive and discriminatory unemployment insurance legislation – legislation that denies hundreds of thousands of unemployed women adequate income security.

Disappointingly, the federal government continues to defend their discriminatory rules. It appealed the Umpire's decision to the Federal Court and the case was heard on November 19 and 20, 2002. ISAC appeared as an intervener to support Ms. Lesiuk's efforts at the hearing.

On January 8, 2003, the Court released its decision, overturning the Umpire's verdict that EI rules violate the Charter (a copy of the decision can be found in the "resources" section). Ms. Lesiuk appealed this decision to the Supreme Court of Canada, but on July 16 the Court denied her leave to appeal, closing off the legal system as an avenue to address this injustice.

Shockingly, the Supreme Court also ordered Ms. Lesiuk to pay the costs associated with her appeal application. This will certainly cast a chill over low income people hoping to use the Supreme Court to enforce their rights.

For more information on the challenge, contact:

Jacquie Chic, Director of Advocacy and Legal Services
(416) 597-5820 ext. 5144
1 (866) 245-4072 (toll free)
chicj@lao.on.ca

Resources