Name of case: Hodge v. Canada (Minister of Human Resources Development)

Supreme Court Panel: Chief Justice Beverley McLachlin and Justices John Major, Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps and Morris Fish

Court appealed from and date of judgment: Judgment of the Federal Court of Appeal dated June 14, 2002.

Facts: Because she had separated from her common-law spouse of twenty years about four months before his death, Betty Hodge's application for a survivor's pension was denied. Under s.2(1)(ii) of the Canada Pension Plan, the definition of "spouse" includes "a person of the opposite sex who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabitated with the contributor for a continuous period of at least one year." Section 2(1)(b) provides that, for the purposes of eligibility for a survivor's pension, the "relevant time" is the time of the contributor's death.

Case history: The CPP Review Tribunal allowed Hodge's appeal and awarded her a survivor's pension, ruling that the definition of "spouse" under s.2(1) offends s.15(1) of the Canadian Charter of Rights and Freedoms, which guarantees every individual "the right to the equal protection and equal benefit of the law without discrimination" based on prohibited grounds, including marital status. The Review Tribunal found that, since married couples do not have to be living together at the time of the contributor's death in order for the surviving spouse to qualify for a survivor's pension, s.2(1)(ii) offends the Charter's guarantee against discrimination on the basis of marital status. Consequently, the Review Tribunal declared the section to be of no force or effect insofar as it requires a non-married spouse to be cohabiting with the contributor at the time of the contributor's death in order to be eligible for a survivor's pension.

The Minister of Human Resources Development appealed the Tribunal's decision to the Pension Appeals Board, which reversed the Review Tribunal's decision, holding that the definition of "spouse" in s.2(1) of the CPP does not offend s.15(1) of the Charter. In the Board's view, the residency requirement is a reasonable attempt by Parliament to accommodate common law spouses without permitting multiple claims. In addition, the Board held that, because Hodge's relationship ended before her spouse had died, she was treated the same as any surviving spouse whose marriage ended in divorce.

In a June 14, 2002 decision, the Federal Court of Appeal unanimously reversed the Pension Appeals Board's decision, ruling that the Board misapplied the law of discrimination by using the wrong comparator group in its analysis of Hodge's claim. The Court ruled that the s.15 analysis set out by the Supreme Court in Law v. Canada, [1999] S.C.J. No. 12 (QL), "requires that this Court adopt the comparator group chosen by the applicant unless it can be shown that there is a paucity of evidence or a failure to plead that comparator. Those circumstances are not apparent in this record." Therefore, the Court concluded, the correct comparator group was, as Hodge asserted, married spouses who were separated but not divorced. Compared to that group, the Court held, "there is a formal distinction drawn between the applicant and others on the basis of a personal characteristic," namely marital status. In addition, the Court held that the residency requirement is not justifiable under s.1 of the Charter, which provides that Charter rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In the Court's view, Parliament could have chosen a less discriminatory method of limiting entitlement to survivors' pensions, and the negative effect of the discrimination was disproportionate to any benefit it provided. In the result, the Court of Appeal struck down the definition of "spouse" in s.2(1) of the Canada Pension Plan, and declared Hodge to be entitled to a survivor's pension. [For a more detailed review of the Court of Appeal's decision, see Lancaster's Human Rights & Charter Law Reporter, July/August 2002.]

Supreme Court's decision (unanimous): The appeal was allowed.

Reasons: The Supreme Court of Canada allowed the Minister's appeal, ruling that the Federal Court of Appeal had erred in its conclusion that it was required to adopt Hodge's choice of comparator group, and that, when the correct group of "divorced spouses" was compared to Hodge's situation, there was no discrimination based on marital status because both former married and former common law spouses were excluded from eligibility for the CPP survivor's pension.

Writing for the Court, Justice Ian Binnie observed that "[t]he outcome of a s.15(1) claim cannot be skewed by a claimant attempting to associate himself or herself with a group whose relevant characteristics do not reflect the claimant's actual circumstances, or by targeting the benefits of a group whose relevant characteristics are simply not comparable." Binnie noted that in the Supreme Court's decision in Law, supra, the Court held that "the claimant's characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups." Accordingly, Binnie held, the Federal Court of Appeal had erred in its conclusion that a court is required to "adopt the comparator group chosen by the applicant unless it can be shown that there is a paucity of evidence or a failure to plead that comparator." In his view, "[w]hile it is up to the claimant to make an initial choice of 'the person, group, or groups with whom he or she wishes to be compared' (emphasis added), the correctness of that choice is a matter of law for the court to determine ... [I]t is the duty of the court to step in and measure the claim to equality rights in the proper context and against the proper standard."

Applying this reasoning to Hodge's circumstances, Binnie determined that the appropriate comparator in this case was not "separated common law spouses," as Hodge claimed, but rather "divorced spouses." Significant in his analysis was the fact that Hodge acknowledged that, when she left the contributor in February 1994, "she intended to and did terminate their relationship." This, he noted, was "to be contrasted with the married spouses whose legal relationship continues to exist and who still have legal obligations to each other despite a separation, and despite any subjective intention on their part to put a de facto end to the marriage." Furthermore, Binnie observed: "[Hodge] terminated cohabitation and cohabitation is a constituent element of the common law relationship. 'Cohabitation' in this context is not synonymous with co-residence. Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense if they are living under the same roof." Applying the approach to common law relationships taken by the Ontario Court of Appeal in Re Sanderson and Russell (1979), 24 O.R. (2d) 429 — that, subject to any relevant statutory provisions, a common law relationship ends "when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a permanent one" — Binnie ruled that, at the time of the contributor's death, Hodge was not a "separated" common law spouse, but a "former" one. Given that former spouses, "whether married or 'common law', do not qualify for a survivor's pension under the CPP," Binnie concluded, "[t]here is no distinction based on marital status, and thus no discrimination." Accordingly, the Court held that s.2(1) of the CPP did not breach s.15 of the Charter, and Hodge was ineligible for a survivor's pension.

Binnie was mindful of Hodge's argument that the Court "should extend the duration of the common law marriage beyond the termination of cohabitation for so long as a measure of economic dependency [between the spouses] continues." However, he noted, while the legislature could extend the responsibility of common law spouses in such a fashion, Parliament had not done so in the CPP; in fact, on the contrary, it had chosen in s.2(1) "to define the requisite common law relationship in terms of cohabitation." "In the absence of any demonstration that this definition itself runs afoul of s.15(1)," Binnie held, "we are not at liberty to ignore it."

In closing, Binnie was also careful to emphasize that "the foregoing analysis deals with heterosexual couples, not homosexual couples. Until such time as the issue of same-sex marriage has been resolved, it is possible that different considerations would apply to gay and lesbian relationships in respect of a survivor's pension because, at least in the past, the institution of a legal marriage had not been available to them."

Date of the Supreme Court's decision: October 28, 2004

Reference: For analysis, see Lancaster's Pension & Benefits Law E-Bulletin, Issue No. 7.

Full text of the decision:
http://www.lancasterhouse.com/decisions/2004/oct/scc-hodge.htm