Name of Case: Attorney General of Canada v. George Hislop et al.

Supreme Court Panel: Justices Louis LeBel and Marshall Rothstein, Chief Justice Beverley McLachlin, Justices Ian Binnie, Marie Deschamps and Rosalie Abella (majority); Justice Michel Bastarche (concurring)
 
Court appealed from and date of judgment: Judgment of the Ontario Court of Appeal, dated November 26, 2004
 
Facts: On July 30, 2000, the federal Modernization of Benefits and Obligations Act (MBOA) came into effect, amending the Canada Pension Plan (CPP) to allow same-sex survivors to receive CPP benefits, provided their partners died after January 1, 1998. The MOBA was enacted by Parliament in response to the Supreme Court of Canada's 1999 decision in M. v. H., [1999] S.C.J. No. 23 (QL), in which the Court deemed it unconstitutional not to extend spousal benefits to same-sex couples. A class action was then brought by persons whose same-sex partners died on or before January 1, 1998 but after April 17, 1985, the date the equality rights guarantee in s.15(1) of the Charter of Rights and Freedoms came into effect. 

Case History: On December 19, 2003, the Ontario Superior Court struck down the amended provisions of the CPP, sections 44.1(1) and 72(2), ruling that the time restriction violated s.15(1) of the Charter. Judge Ellen Macdonald ruled that the exclusion of individuals whose same-sex partner died on or before January 1, 1998 from entitlement to pension benefits was unconstitutional and could not be saved by s.1. She held that each class member was entitled to receive a pension as of one month after his or her partner’s death.

The Attorney General of Canada appealed the trial judge's decision.

On November 26, 2004, the Ontario Court of Appeal ruled that the federal government violated the rights of same-sex couples by denying them survivor pension benefits under the CPP, contrary to s.15 of the Charter, and the offending provisions could not be saved by s.1. In a unanimous judgment, the Court of Appeal upheld the trial judge's decision to strike down as unconstitutional the two CPP sections that specifically excluded same-sex survivors by limiting entitlement to a survivor’s pension under the CPP. By virtue of these sections, same-sex conjugal relationships were not fully recognized and the survivor of a same-sex conjugal relationship was not eligible to receive a survivorship pension under the CPP. "The impairment of the rights of same-sex survivors cannot be said to be minimal. The denial of equal access to such a fundamental social institution constituted a complete non-recognition of these same-sex survivors as full members of Canadian society."

According to the Court of Appeal, the decision to extend rights under the MBOA, but at the same time limit its retroactive application, based solely on an individual's status as a same-sex partner, was "arbitrary" and violated the Charter's guarantee of equality because, while "partners of same-sex survivors contributed to the CPP … their surviving partners were denied access to the federal pension program. Same-sex surviving partners "had the same need for survivors' pensions as opposite-sex survivors … [and] [t]he denial of those survivors' pensions, without any corresponding ameliorative benefit to a more disadvantaged group, perpetuated the view that same-sex survivors were less worthy of recognition than opposite-sex survivors, when in fact [they] were equally deserving of concern, recognition, and respect." The Court observed that, in formulating remedial legislation responsive to a successful Charter challenge, one of the key issues that Parliament must address is the extent to which recognition of the Charter right will have retrospective application and effect. In so doing, the remedial legislation must itself be constitutional.

However, the Court of Appeal allowed the Attorney General of Canada's appeal with respect to two CPP sections that were of general application and set aside the constitutional exemption from those sections that had been granted by the trial judge. As a result of the Court's decision, class members could receive retroactive survivors' pensions, but they were limited by the sections of general application, which applied to all claimants and which restricted the payment of pension arrears to the 12 months prior to the survivor's application for a pension.

Issue(s): (1) Do the MBOA amendments violate the guarantee of equality enshrined in s.15(1) of the Charter, and if so, whether they can be justified as a reasonable limit under s.1 of the Charter? (2) Is the government liable to extend legislative benefits retrospectively to 1985? (3) Do the two impugned CPP sections of general application have a discriminatory effect on class members? (4) Is a constitutional exemption available with respect to the two impugned CPP sections of general application? (5) Does an estate have standing to advance a Charter claim? 

Supreme Court's Decision (7-0): The appeal was dismissed. 

Reasons: In its decision, the Supreme Court first addressed the new s.44(1.1) of the CPP that had been created by the MBOA. This section provides that, "[i]n the case of a common-law partner who was not, immediately before the coming into force of this subsection, a person described in ... the definition [of] 'spouse' ... as that definition read at that time, no survivor's pension shall be paid ... unless the common-law partner became a survivor on or after January 1, 1998." The Court held that, while "[t]he MBOA recognized that the former CPP regime violated s.15(1) of the Charter because it failed to recognize survivors of same-sex conjugal relationships," section 44(1.1) continues "to fail to recognize survivors of same-sex conjugal relationships whose contributing partner died before January 1, 1998."

The Supreme Court rejected the federal government's argument that, by drawing only a temporal restriction based on the date of becoming a survivor, this provision did not improperly differentiate between same-sex couples and opposite-sex couples, but rather differentiated between two groups of survivors of same-sex relationships based on the date the relationships ended as a result of one partner's death. It held that "[t]he MBOA was expressly intended to extend equal treatment to same-sex partners in a wide range of statutes. It is the purpose of the MBOA itself that determines the appropriate comparator group. What must be compared is the subset of same-sex survivors that remains excluded from the CPP survivor's benefits, i.e., those whose partners died before January 1, 1998, and similarly situated opposite-sex survivors. The appropriate comparator group ... is survivors of opposite-sex conjugal relationships whose partners died before January 1, 1998." Finding that s.44(1.1) therefore contravened s.15(1) of the Charter, the Court further ruled that there was no reason to consider it a reasonable limit pursuant to s.1 of the Charter.

Applying the same reasoning, the Supreme Court also upheld the Court of Appeal's decision to set aside the new s.72(2) of the CPP, likewise created by the MBOA, which provided, as in s.44(1.1), that in the case of survivors who did not meet the definition of "spouse" prior to the MBOA, "no survivor's pension may be paid for any month before the month in which this subsection comes into force," that is, before July 2000. Observing that this contrasted with the pre-existing s.72(1), which provided that "in the general case, survivorship pension arrears are payable for a period of up to 12 months preceding the month following the month in which the application for the pension was received," the Court ruled that "[b]y reason of s.72(2), same-sex and opposite-sex survivors are treated differently," and that this contravened of s.15(1) of the Charter.

Finally, the Supreme Court addressed the issue of the 12-month limit on the retroactivity of survivor benefits, in the case of same-sex and opposite-sex survivors alike, established by the pre-existing s.72(1) of the CPP. The class action claimants had argued, in effect, that since the equality rights of same-sex couples were found by the Supreme Court in M. v. H. to exist by virtue of s.15(1) of the Charter which came into effect in 1985, surviving same-sex partners were entitled to CPP survivor benefits as of that date, and anything short of full retroactivity was a perpetuation of discrimination.

Going considerably beyond the Court of Appeal's determination that this provision was not discriminatory because it applied equally to survivors of opposite-sex and same-sex couples, the Supreme Court held that a distinction must be drawn between cases where courts "apply pre-existing legal doctrine to a new set of facts" and those, like the present one, where "the law changes through judicial intervention."

The Court acknowledged that "[t]he Constitution empowers courts to issue constitutional remedies with both retroactive and prospective effects," and that "[t]his Court has applied in many cases the 'declaratory approach' to constitutional remedies, which implies that ... remedies are often given retroactive effect." Referring to the 19th century British legal scholar William Blackstone, the Court observed that "the declaratory approach is derived from Blackstone's famous aphorism that judges do not create law but merely discover it." The Court considered that, "[w]hen [a court] is declaring the law as it has existed, then the Blackstonian approach is appropriate and retroactive relief should be granted," but that "when a court is developing new law within the broad confines of the Constitution, it may be appropriate to limit the retroactive effect of its judgment."

Applying this analysis to the present case, the Supreme Court held that, "[j]ust as ignorance of the law is no excuse for an individual who breaks the law, ignorance of the Constitution is no excuse for governments. But where a judicial ruling changes the existing law or creates new law, it may, under certain conditions, be inappropriate to hold the government retroactively liable. An approach to constitutional interpretation that makes it possible to identify, in appropriate cases, a point in time when the law changed, makes it easier to ensure that persons and legislatures who relied on the former legal rule while it prevailed will be protected. In this way, a balance is struck between the legitimate reliance interests of actors who make decisions based on a reasonable assessment of the state of the law at the relevant time on one hand and the need to allow constitutional jurisprudence to evolve over time on the other."

With regard to the rights of same-sex couples, the Court stated that "[t]his Court's decision in M. v. H. marked a departure from pre-existing jurisprudence on same-sex equality rights. In 1995, a majority of this Court upheld the exclusion of same-sex partners from old age security legislation in Egan [v. Canada, [1995] 2 S.C.R. 513].... Four years later in M. v. H., eight members of this Court held that the exclusion of same-sex partners from the spousal support provisions under the Family Law Act was contrary to s.15(1) and could not be saved under s.1. M. v. H. thus marks a clear shift in the jurisprudence of the Court, where it moved away from the plurality's holding in Egan and came to a new understanding of the scope of equality rights."

Against this background, the Court concluded, "[i]n seeking payment of arrears back as far as 1985, the Hislop class effectively asks this Court to overlook the evolution in the jurisprudence of same-sex equality rights that has taken place and to declare that the understanding to which we have come over that period of time was in fact the law in 1985. This position cannot be sustained. Although M. v. H. declares what the Constitution requires, it does not give rise to an automatic right to every government benefit that might have been paid out had the Court always interpreted the Constitution in accordance with its present-day understanding of it." Holding that "[a]chieving an appropriate balance between fairness to individual litigants and respecting the legislative role of Parliament may mean that Charter remedies will be directed more toward government action in the future and less toward the correction of past wrongs," the Supreme Court declined to grant full retroactivity.

The Supreme Court also held that the Court of Appeal had correctly determined that there was nothing discriminatory about the pre-existing s.60(2) of the CPP, which provides that, "[w]here a survivor entitled to a survivor's CPP pension dies without making application for that pension, the survivor's estate may apply and obtain the pension benefit to which the survivor would have been entitled, provided the estate makes application within 12 months after the death of the survivor." The class action claimants had argued that, because some same-sex survivors had been deceased for much more than 12 months when the MBOA amendments to the CPP came into effect, their estates should be able to apply for the benefits to which these survivors would have been entitled, and the 12-month limitation in s.60(2) should be suspended in these circumstances. The Supreme Court ruled that no s.15(1) right was engaged in the case of estates of same-sex survivors because "an estate is 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.... [E]states 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."

Date of the Supreme Court’s decision: March 1, 2007
                             
Lancaster Reference: For analysis of the Supreme Court's decision, see Lancaster’s Pension & Benefit Law E-Bulletin, April 23, 2007, Issue No. 55.