Supreme Court awards same-sex CPP survivor benefits

The Supreme Court of Canada released its decision today in the first Charter of Rights class action to go to trial in Canada. In the decision, the Court awarded CPP survivor’s pensions to 1,500 Canadians involved in the class action lawsuit and cleared the way for other same-sex couples to collect survivor benefits in arrears.

The long-standing case began in November 2001 when Hislop et al. v. Attorney General of Canada was launched in Ontario and Brogaard et al. v. Attorney General of Canada was launched in British Columbia.

In April 1986, Ronald Shearer, George Hislop’s partner of 28 years, died. In July 1992, Gail Meredith’s same-sex partner of more than 15 years, Judy Patterson, also died. In both cases, the surviving spouses called their local CPP offices to inquire about CPP survivor’s pension benefits but were informed they did not qualify because Hislop “was not a woman,” and because Meredith and her partner were of the same sex.

Other class action members, Albert McNutt and Eric Brogaard report similar experiences following the deaths of their spouses, despite the fact that Subsection 15 of the Canadian Charter of Rights and Freedoms, in effect since April 1985, states that “every individual is equal before and under the law and has the right to the equal protection 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.”

In February 2000 the federal government tabled Bill C-23, the Modernization of Benefits and Obligations Act (MBOA), intended to amend 68 federal statutes, including the CPP, to recognize same-sex couples, but the CPP was amended so that only gay men and lesbians whose partners died on or after January 1, 1998, would be eligible for a survivor’s pension and that their pensions would commence only once the legislation came into force on July 31, 2000.

Brogaard, Meredith and Hislop applied for pensions following the enactment of MBOA but were denied because their partners died before January 1, 1998. When their class action lawsuits were certified, class members sought a full recovery of the survivor’s pension, including payment of the arrears to one month after the date of death for each class member’s deceased partner, in line with the rules established for heterosexual survivors.

In Hislop et al v. the Attorney General, the Ontario Superior Court found that excluding class members from a survivor’s pension was an infringement of the Subsection 15 equality rights and ordered that class members be granted full and equal survivor’s pensions, including arrears, plus interest. The federal government appealed the decision in January 2004.

The subsequent Court of Appeal decision agreed with the trial decision but disagreed with the trial judge’s decision regarding the arrears of the pension — the concession left open the possibility that a one-year limit for arrears might be enforceable and ruled out recovery altogether for claimants who had died.

Following the decision, the federal government sought leave to appeal the decision, asking the Court to rule that no class members were entitled to any pensions. Class members, meanwhile, filed materials seeking leave to appeal the Supreme Court to restore the original decision without the one-year limit and restoring the claims of estates. The Supreme Court granted both applications for leave to appeal on June 23, 2005.

Bill C-38 recognizing same-sex marriage passed final reading in the House of Commons by a vote of 158–133 on June 29, 2005. On October 8, 2005, George Hislop died in Toronto at the age of 78.

In the appeal, the Court was asked to decide if same-sex survivors whose partners died between April 17, 1985 (the date Subsection 15 of the Charter of Rights came into effect), and January 1, 1998, were entitled to a CPP survivor’s pension; if survivors were entitled to equal arrears of CPP survivor’s benefits, like heterosexual survivors, beginning one month after the date of their partners’ deaths; and whether the estates of pensioners who died prior to the Supreme Court’s ruling, like George Hislop, were barred from claiming the pension benefits owed.

The Supreme Court upheld the two lower court rulings and found that denying pension benefits to same-sex survivors was a violation of the Charter of Rights and ordered some pension benefits to be paid to class members. Those who applied for survivor’s pensions in the past can collect the benefits back to August 1999. Those who’ve never applied for the benefits are entitled to 12 months in arrears.

Representative plaintiff Albert McNutt says he’s relieved that the Supreme Court found he is entitled to the benefits but is disappointed that the government is allowed to pay him less than a full pension, despite the fact he applied for the benefits back in October 1993 (McNutt’s partner died in August 1993).

Similarly, Christopher Hudspeth, executor for George Hislop, says “I am encouraged that the Court has seen fit to uphold the basic principle of equality in this case; however, I am disappointed that the Court’s ruling falls short of true equality.”

“We are pleased that the Supreme Court of Canada has ruled in our favour on the fundamental issue of entitlement,” says lead counsel, Douglas Elliott of Roy Elliott Kim O’Connor LLP. “We were not completely successful in the case, but we hope that our clients will take comfort in the Supreme Court of Canada’s recognition that they are entitled to a survivor’s pension.”

Filed by Kate McCaffery Advisor.ca, kate.mccaffery@advisor.rogers.com

(03/01/07)

Kate McCaffery