A tribunal ruled on April 5 that Canada’s employment insurance laws are constitutionally unfair to women, because as primary caregivers, it’s harder for them to qualify.

In the case of Winnipeg nurse Kelly Lesiuk, retired Justice Roger Salhany said in a written decision, "When a mother works part-time because of her unpaid parental responsibilities, she should not receive inferior employment insurance coverage."

Salhany found that the current rules violate the Charter of Rights and Freedoms’ equality provisions. He noted that despite the violation, he cannot strike down the rule as unconstitutional.

Even though the ruling does not change the law, other courts hearing similar challenges to the employment insurance laws could use this decision as precedent. If Salhany’s ruling is upheld on an appeal to the Federal Court, Parliament would be forced to act on changing the law.

Kelly Lesiuk was a apart-time nurse and mother who fell 33 hours short of qualifying for EI. Her Charter case argues that EI rules discriminated against women and part-time workers.

Under Employment Insurance legislation, workers must accumulate 700 hours of employment to qualify for coverage.

Lesiuk was denied maternity benefits in 1998 after the birth of her second child because her part-time job meant she fell short of the qualifying time. She was forced to stop working early in her pregnancy because of medical problems. She was then forced to return to work only six weeks after the birth due to financial pressures.

Lesiuk said she had been unaware of the 1996 changes that had been made to the EI qualifying hours, and had assumed she would qualify for benefits. When she had her first child in 1995, the legislation only required 15 hours a week over 20 weeks to qualify for benefits.

Federal lawyers defended the qualifying provisions on the basis that there are between 1,850 and 2,000 working hours in a year. It was also argued that the new qualifying system provided more flexibility.

Lesiuk’s lawyer, referred to a government survey conducted in 1997 that found an 8 percent gap between men and women in terms of eligibility for coverage. In his final arguments, Byron Williams said, "it tells us that men and women do not have equal access to employment insurance."

Williams also argued the law violated the Charter by failing to provide an essential public service or a reasonable quality of life.

Lesiuk’s case is considered to be the leading national case among 60 other challenges to the act.