Canada (Attorney General) v. Hislop

The Supreme Court of Canada released its decision today in a class action suit brought on behalf of same-sex partners who were denied Canada Pension Plan survivor’s benefits because their partners died before January 1, 1998, and on behalf of same-sex partners who were not eligible for benefits in respect of any time before July 2000. The case is called, Canada (Attorney General) v. Hislop, 2007 SCC 10.

The Canada Pension Plan now provides for benefits to surviving married spouses and surviving common-law partners of deceased person who were contributors to the Canada Pension Plan. The definition of common-law partners includes opposite and same-sex partners who lived in a conjugal relationship. Accordingly, a surviving same-sex partner of a deceased contributor may receive Canada Pension Plan survivorship benefits.

But, it was not always so.

The federal government amended the Canada Pension Plan, RSC 1985, c. C-8, to include same-sex partners effective July 2000. The amendments contained some restrictions. The new provisions allowing survivorship benefits to same-sex partners did not apply if the Canada Pension Plan contributor died before January 1, 1998. If the contributor died on December 31, 1997, the contributor’s same-sex partner would not be entitled to any survivorship benefits.

Furthermore, those same-sex partners who were eligible to receive survivorship benefits could only receive benefits from July 2000. If the contributor died in November 1999, the surviving same-sex partner was not eligible for the benefits in respect of the period from November 1999 through June 2000.

The Canada Pension Plan also provides that a surviving spouse or common-law partner (whether same-sex or opposite-sex) may only receive benefits in respect of a period of up to one year before he or she applies for the benefits. For example, if your spouse died in January 2002, and you applied for benefits in April 2003, you would be entitled to the arrears of benefits from April 2002, but not for January, February or March 2002.

George Hislop, Brent Daum, Albert McNutt, Eric Brogaard and Gail Meredith as representative plaintiffs challenged the restrictions in the legislation. They argued that by limiting the rights of same-sex survivors, the federal government violated section 15 (1) of the Charter of Rights and Freedoms. Section 15 (1) says,

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The representative plaintiffs advanced arguments on four main issues as follows:

1. The legislation discriminated against anyone whose same-sex partner died before January 1, 1998. In contrast, the opposite-sex partner of a deceased contributor who died before January 1, 1998 is eligible for survivorship benefits.

2. Similarly, by disallowing benefits for the period before July 2000, the legislation discriminated against same-sex partners, who were not treated equally to opposite-sex partners in similar circumstances.

3. Because the legislation allowing same-sex partners to receive survivorship benefits did not come into effect until July 2000, the provision limiting payments in respect of benefits for up to one year before the survivor applies has a discriminatory effect. The representative plaintiffs argued it should be suspended in some cases. This would allow those who were not eligible to apply to receive the benefits they could have received if the legislation had been changed when section 15 of the Charter came into effect on April 17, 1985.

4. The estates of those same-sex partners who would have been entitled to survivorship benefits if the legislation had been amended earlier should receive the survivorship benefits.

The Supreme Court of Canada held that the provision excluding the surviving same-sex partners of contributors who died before January 1, 1998, violated section 15 of the Charter. The court struck out the provision. Those surviving same-sex partners of contributors who died from April 17, 1985 to December 31, 1997, may now receive Canada Pension Plan survivorship benefits.

The Court also held that the provision disallowing benefits to same-sex partners for the period before July 2000 was unconstitutional.

On the other hand, the Supreme Court of Canada did not suspend the 12-month restriction on arrears of benefits. The Court dealt with this question as an issue of remedy, rather than one of rights. In deference to Parliament, which had acted in good faith, the court declined to award benefits for any period exceeding 12 months prior to an application for benefits. The effect of this is that the Canada Pension Plan will not be required to pay survivorship benefits to same-sex partners in respect of any period before July 1999 (one year before the amendments came into effect).

The Supreme Court of Canada also refused to make any award to the estates of those same-sex partners who died before the date arguments were concluded in the Ontario Superior Court.

As an estate lawyer, I find this part of the judgment especially interesting. Mr. Justice LeBel and Mr. Justice Rothstein characterize an estate as “just a collection of assets and liabilities of a person who has died. It is not an individual and it has no dignity that may be infringed.” With respect to section 15 of the Charter, “The use of the term ‘individual’ in s. 15 (1) was intentional. For these reasons, we conclude that estates do not have standing to commence s. 15(1) Charter claims. In this sense, it may be said that s. 15 rights die with the individual.”

Sadly, one of the representative plaintiffs, Mr. Hislop, died before this judgment. Because he was alive on the day final arguments were made in the Ontario Court of Justice, his estate will be eligible for the benefits he fought for.