Dutil, Mainville, Moore

Appeals from a judgment of the Superior Court allowing in part an application for judicial review. The principal appeal is allowed in part for the sole purpose of setting aside a paragraph of the judgment, the incidental appeal of the respondent is allowed in part, and the incidental appeal of the impleaded party is dismissed.

The respondent, who had made a claim for refugee protection, was staying in Quebec and held a work permit. She was excluded from the access program for subsidized childcare spaces, which is reserved for persons whose refugee status is officially recognized by the federal authorities, not those waiting for a decision in this regard. The trial judge found that section 3 of the Reduced Contribution Regulation (CQLR, c. S-4.1.1, r. 1) had been enacted without statutory authorization and was thus ultra vires and void. He however rejected the respondent’s submissions on the interpretative and constitutional aspects.

The judge committed a reviewable error in determining that the government could not establish the eligibility conditions for reduced contributions in section 3 of the Regulation, given the objectives of the Educational Childcare Act (CQLR, c. S-4.1.1), the Act as a whole, and its purpose. Subparagraph 4 of section 42 of the Act provides that a home educational childcare coordinating office has the function of determining a parent’s eligibility for the reduced contribution. The appellant is correct that the legislature’s intention was to assign to a regulatory authority not only the determination of the parent’s contribution, but also the eligibility conditions, and that this is in fact a matter of indirect authorization. However, the terms used in paragraph 3 of section 3 of the Regulation do not grant discretionary power allowing a person who has made a claim for refugee protection but whose refugee status has not been officially recognized under the Immigration and Refugee Protection Act (S.C. 2001, c. 27) to be considered eligible for the reduced contribution. Distinctions regarding immigration status, introduced by section 3 of the Regulation, are rationally justified in light of the enabling provision and the legislative objective.

That said, the respondent established an adverse impact on the ground of sex, as the exclusion resulting from section 3 of the Regulation creates or contributes to creating a disproportionate effect on women seeking refugee protection as a group. Moreover, although women who have made a claim for refugee protection are not specifically excluded from section 3 of the Regulation, it reinforces, perpetuates, and exacerbates the disadvantage suffered by them, as women in the job market. Indeed, women suffer a historical disadvantage in the job market due to the fact they disproportionately assume obligations related to the care and custody of children. The distinction created in this case thus constitutes adverse effect discrimination based on sex within the meaning of section 15 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I). This discrimination is unjust, as the appellant did not establish that there is minimal impairment or that there is proportionality between the effects and the objective. Applying the interpretive approach of reading in is the best way to correct the too narrow scope of section 3 of the Regulation, which must now be read as rendering a parent who resides in Quebec for the purpose of a claim for refugee protection and who holds a work permit, eligible for the reduced contribution.

Legislation interpreted: section 3 of the Reduced Contribution Regulation

Text of the decision: http://citoyens.soquij.qc.ca