Bear v. Can. (A.G.), (2003) 300 N.R. 57 (FCA)

• Judge: Strayer, Nadon and Evans, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 14, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2003), 300 N.R. 57 (FCA);2003 FCA 40

Bear v. Can. (A.G.) (2003), 300 N.R. 57 (FCA)

MLB headnote and full text

Temp. Cite: [2003] N.R. TBEd. JA.066

Her Majesty the Queen (appellant) v. Rose Bear (respondent)

(A-680-01; 2003 FCA 40)

Indexed As: Bear v. Canada (Attorney General)

Federal Court of Appeal

Strayer, Nadon and Evans, JJ.A.

January 27, 2003.

Summary:

Bear, a status Indian, had been employed on an Indian Reserve since 1966. Through the combined effect of the Canada Pension Plan (CPP) Act, the Income Tax Act and the Indian Act, Bear's income was not taxable and therefore not pensionable under the CPP. In 1988, the CPP Regulations were amended to allow Bear and other similarly situated persons to participate in the CPP. Bear opted into the CPP in 1988. Revenue Canada refused her request that she be allowed to contribute the maximum amount retroactive­ly. Bear sought judicial review.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 212 F.T.R. 208, held that Bear had been discriminated against contrary to s. 1(b) of the Canadian Bill of Rights and that the offending parts of the Indian Act, Income Tax Act and Canada Pension Plan Act were of no force and effect insofar as they created that inequality; and the appropriate remedy was to allow Bear to pay back her CPP premiums in order to qualify for full benefits upon reaching age 65. The court stated that the Charter was probably not applicable because of the pro­hibition against retroactive application. The court stated that, if the Charter was appli­cable, the CPP breached s. 15 and was not saved by s. 1. The Crown appealed.

The Federal Court of Appeal allowed the appeal. The court held that the CPP scheme did not contravene s. 15(1) of the Charter and, if it was contravened, any effect the Charter might have on the situation could not go back beyond April 17, 1985, the day that s. 15(1) came into effect. The court held that the CPP scheme did not contravene s. 1(b) of the Bill of Rights.

Civil Rights - Topic 928

Discrimination - Government programs - Pension legislation - Bear, a status Indian, had been employed on an Indian Reserve since 1966 - Through the combined effect of the Canada Pension Plan (CPP) Act, the Income Tax Act and the Indian Act, income earned by an Indian employed on an Indian reserve was not taxable and therefore not pensionable under the CPP - In 1988, the CPP Regulations were amended to allow Bear and other similarly situated persons to participate in the CPP -Bear opted in, but Revenue Canada ref­used her request to contribute the maxi­mum amount retroactively - The Federal Court of Appeal held that Bear had not been discriminated against contrary to s. 1(b) of the Canadian Bill of Rights - Sec­tion 1(b) guaranteed "equality before the law" but not "equality under the law" or "equal benefit of the law" - See paragraphs 38 to 40.

Civil Rights - Topic 928

Discrimination - Government programs - Pension legislation - Bear, a status Indian, had been employed on an Indian Reserve since 1966 - Through the combined effect of the Canada Pension Plan (CPP) Act, the Income Tax Act and the Indian Act, income earned by an Indian employed on an Indian reserve was not taxable and therefore not pensionable under the CPP - In 1988, the CPP Regulations were amended to allow Bear and other similarly situated persons to participate in the CPP -Bear opted in, but Revenue Canada ref­used her request to contribute the maxi­mum amount retroactively - The Federal Court of Appeal held that the CPP scheme in place from 1966 to 1988 did not offend Bear's human dignity and therefore s. 15(1) of the Charter was not contravened -If s. 15(1) was contravened, any effect the Charter might have on the situation could not go back beyond April 17, 1985, the day that s. 15(1) came into effect - See paragraphs 1 to 36.

Civil Rights - Topic 1034

Discrimination - Race and national or ethnic origin - Indians - [See both Civil Rights - Topic 928 ].

Civil Rights - Topic 5658

Equality and protection of the law - Par­ticular cases - Pension legislation - [See both Civil Rights - Topic 928 ].

Civil Rights - Topic 8007

Canadian Bill of Rights - Principles of operation and interpretation - Equality before the law - [See first Civil Rights - Topic 928 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General - [See second Civil Rights - Topic 928 ].

Civil Rights - Topic 8664

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Application - [See second Civil Rights - Topic 928 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See second Civil Rights - Topic 928 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - The Federal Court of Appeal noted that "the word 'dignity' does not appear anywhere in subsection 15(1), nor for that matter any place else in the Charter. One must take care not to be drawn into a false syllogism that because all discrimination prohibited by the lan­guage of section 15(1) attenuates the dig­nity of its victims, therefore all attenuation of personal dignity is a prohibited form of discrimination. ... The history of the Char­ter and the 'mischief' it was to correct would suggest instead that it was designed to remedy more blatant and profound attacks on equality usually, though not always, enacted for a purpose that would clearly involve such consequences." - See paragraph 24.

Constitutional Law - Topic 114

Definitions - Rule of law - The Federal Court of Appeal opined that "the rule of law does not require that the law produce the same outcomes for every person in the country. What it does mean is that the relationship between the state and the individual must be regulated by law ..." - See paragraph 41.

Government Programs - Topic 1252

Canada Pension Plan - Assessments and contributions - Retroactive contributions - [See both Civil Rights - Topic 928 ].

Cases Noticed:

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 19].

Walsh v. Bona et al. (2002), 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273 [para. 27].

Williams v. Minister of National Revenue, [1992] 1 S.C.R. 877; 136 N.R. 161, refd to. [para. 27].

Nowegijick v. Minister of National Rev­enue et al., [1983] 1 S.C.R. 29; 46 N.R. 41; 83 D.T.C. 5041; 144 D.L.R.(3d) 193, refd to. [para. 28].

Attorney General of Nova Scotia v. Walsh et al. - see Walsh v. Bona et al.

R. v. Drybones, [1970] S.C.R. 282, refd to. [para. 38].

Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, refd to. [para. 39].

Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183, refd to. [para. 39].

Andrews v. Law Society of British Colum­bia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 39].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1; 30 D.L.R.(4th) 481; 26 C.R.R. 59, refd to. [para. 39].

Singh v. Canada (Attorney General), [2000] 3 F.C. 185; 251 N.R. 318 (C.A.), refd to. [para. 41].

Babcock et al. v. Canada (Attorney Gen­eral) et al. (2002), 289 N.R. 341; 168 B.C.A.C. 50; 275 W.A.C. 50 (S.C.C.), refd to. [para. 41].

Counsel:

Donald Rennie and Brian Hay, for the appellant;

Timothy Valgardson and Michelle Pollock-Kohn, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant;

Levene Tadman Gutkin Golub, Winnipeg, Manitoba, for the respondent.

This appeal was heard at Vancouver, British Columbia, on November 14, 2002, by Strayer, Nadon and Evans, JJ.A., of the Federal Court of Appeal. Strayer, J.A., delivered the following decision for the court at Ottawa, Ontario, on January 27, 2003.