Hislop et al. v. Canada (Attorney General), (2007) 222 O.A.C. 324 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella and Rothstein, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday March 01, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 222 O.A.C. 324 (SCC);2007 SCC 10;222 OAC 324;37 RFL (6th) 1;JE 2007-477;358 NR 197;154 ACWS (3d) 362;[2007] SCJ No 10 (QL);153 CRR (2d) 173;[2007] 1 SCR 429;278 DLR (4th) 385;EYB 2007-115536

Hislop v. Can. (A.G.) (2007), 222 O.A.C. 324 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] O.A.C. TBEd. MR.018

Attorney General of Canada (appellant/respondent on cross-appeal) v. George Hislop, Brent E. Daum, Albert McNutt, Eric Brogaard and Gail Meredith (respondents/appellants on cross-appeal) and Attorney General of Ontario, Attorney General of Quebec, Attorney General of Alberta and Egale Canada Inc. (intervenors)

(30755; 2007 SCC 10; 2007 CSC 10)

Indexed As: Hislop et al. v. Canada (Attorney General)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella and Rothstein, JJ.

March 1, 2007.

Summary:

Amendments to the Canada Pension Plan (CPP) in 2000 extended survivor benefits to same-sex partners by amending the definition of "spouse" to conform with the equality rights provisions of s. 15(1) of the Charter. However, eligibility was limited to same-sex partners whose "spouse" died on or after January 1, 1998, and benefits were not retroactive to April 17, 1985 (when Charter in force) or the date of death of the "spouse", whichever occurred later (ss. 44(1.1) and 72(2)). Further, s. 60(2) of the CPP, which limited the estate of any surviving spouse to 12 months' benefits, and s. 72(1), which limited the payment of pension arrears to the 12 month period preceding the application, were not amended by the 2000 amendments. A class action was commenced by same-sex survivors, challenging the four sections as violating their equality rights under s. 15(1) of the Charter.

The Ontario Superior Court, in a judgment reported [2003] O.T.C. 1111, held that ss. 44(1.1) and 72(2) violated s. 15(1) of the Charter and were declared invalid. Same-sex survivors were granted a constitutional exemption from ss. 60(2) and 72(1). Survivors were entitled to benefits retroactive to the later of the date of death of their partner and April 17, 1985, with interest. The federal Attorney General appealed the declaration of invalidity, the constitutional exemption and the award of interest on the retroactive benefits. The provincial Attorney General intervened on the issue of retroactivity of benefits beyond the date the amending legislation came into force (2000).

The Ontario Court of Appeal, in a judgment reported (2004), 192 O.A.C. 331, allowed the appeal in part. The court affirmed that ss. 44(1.1) and 72(2) violated equality rights contrary to s. 15(1) of the Charter and were not saved under s. 1. Sections 60(2) and 72(1) were not contrary to s. 15(1). Sections 44(1.1) and 72(2) were appropriately struck down, leaving a same-sex surviving spouse entitled to survivor benefits subject only to the 12 month cap on arrears and the limitation on estate claims (as were all benefits claimants). There was no basis for a s. 24(1) remedy or a constitutional exemption under s. 52(1) of the Constitution Act. The federal Attorney General appealed the finding that ss. 44(1.1) and 72(2) violated s. 15(1) and the awarding of pre-judgment interest on pension arrears. The same-sex survivors cross-appealed the finding that ss. 60(2) and 72(1) did not violate s. 15(1).

The Supreme Court of Canada dismissed the appeal and cross-appeal. The court affirmed that ss. 44(1.1) and 72(2) violated s. 15(1) of the Charter and were not reasonable limits prescribed by law under s. 1. The court affirmed that s. 60(2) did not violate s. 15(1). Since the same-sex survivors were not entitled, as a constitutional remedy, to benefits retroactive to 1985, it was unnecessary to determine whether s. 72(1) violated s. 15(1). Accordingly, ss. 44(1.1) and 72(2) were appropriately struck down, leaving a same-sex surviving spouse entitled to survivor benefits subject only to the 12 month cap on arrears and the limitation on estate claims. The court affirmed the same-sex survivors' entitlement to pre-judgment interest.

Civil Rights - Topic 953

Discrimination - Sexual orientation - Homosexuals (incl. same-sex couples) - Amendments to the Canada Pension Plan (CPP) in 2000 extended survivor benefits to same-sex partners by amending the definition of "spouse" to conform with the equality rights provisions of s. 15(1) of the Charter - However, ss. 44(1.1) and 72(2) of the CPP, which applied only to same-sex survivors, limited the remedial effect by excluding from eligibility those survivors whose partner died before January 1, 1998, and making benefits payable only from the date the legislation was in force (2000) - Sections 60(2) and 72(1), which predated the amendments and applied to all spouses, limited the claims of estates to 12 months from the date of death of the contributing partner and limited the claims of surviving spouses to 12 months of arrears from the date of application for benefits - The Supreme Court of Canada affirmed that ss. 44(1.1) and 72(2) violated s. 15(1) of the Charter and were not reasonable limits prescribed by law under s. 1 (objectives not pressing and substantial, no rational connection to objectives and rights not minimally impaired) - Survivors of same-sex conjugal relationships in which the contributor died any time after April 17, 1985, were eligible to receive a survivor's pension - Sections 60(2) was not contrary to s. 15(1), as estates did not have standing to commence s. 15(1) Charter claims - Since the same-sex survivors were not entitled, as a constitutional remedy, to benefits retroactive to1985, where a substantial change in the law was involved, it was unnecessary to determine whether s. 72(1), which limited arrears, violated s. 15(1) - Sections 44(1.1) and 72(2) were appropriately struck down, leaving a same-sex surviving spouse entitled to survivor benefits subject only to the 12 month cap on arrears and the limitation on estate claims - Same-sex survivors were not entitled, as a constitutional remedy, to retroactive benefits starting from the time of death of the same-sex conjugal contributing partner - See paragraphs 30 to 134.

Civil Rights - Topic 5513

Equality and protection of the law - General principles and definitions - Charter, s. 15 - "Individual" defined - Section 15(1) of the Charter guaranteed every "individual" equal protection and benefit of the law without discrimination based on enumerated or analogous grounds - The Supreme Court of Canada stated that an estate was not an "individual" and had no dignity that could be infringed - Accordingly, "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." - See paragraph 73.

Civil Rights - Topic 5516

Equality and protection of the law - General principles and definitions - Tests for inequality - General - The Supreme Court of Canada stated that to find a denial of equality rights under s. 15(1) of the Charter the following must be established: "(1) differential treatment on the basis of a personal characteristic; (2) that is an enumerated or analogous ground; (3) which is discriminatory in purpose or effect" - See paragraph 36.

Civil Rights - Topic 5658

Equality and protection of the law - Particular cases - Pension legislation - [See Civil Rights - Topic 953].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 953].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Supreme Court of Canada stated that the four tests to be examined in a s. 1 analysis were "(1) Is the objective of the legislation pressing and substantial?; (2) Is there a rational connection between the government's legislation and its objective?; (3) Does the government's legislation minimally impair the Charter right or freedom at stake?; (4) Is the deleterious effect of the Charter breach outweighed by the salutary effect of the legislation?" - See paragraph 44.

Civil Rights - Topic 8372.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Limits on retroactivity - Until amending legislation in 2000, survivors of same-sex conjugal relationships were denied Canada Pension Plan survivor's benefits - The survivors were now, like opposite-sex couples, limited to 12 months' arrears of benefits - The survivors argued that since the provisions denying them benefits denied their s. 15(1) Charter rights and were declared of no force and effect (declaration of statute invalidity) under s. 52(1) of the Constitution Act, those who would have been entitled to benefits at any time since s. 15(1) came into force in 1985 were entitled to those benefits retroactively - The Supreme Court of Canada held that notwithstanding the Blackonian declaratory approach (judges do not create law but merely discover it), a retroactive remedy was not appropriate in this case - The court was not declaring law as it existed in 1985, but was developing new law within the broad confines of the Constitution (i.e., acting outside the Blackstone paradigm) - Up until the court's 1999 decision in M. v. H., the court had held that the Constitution did not require equal benefits for same sex couples - M. v. H. represented a substantial change in the law, which was the threshold requirement for limiting the retroactive effect of the remedy - The relevant factors of the government's reasonable reliance on the pre-existing state of the law on equality rights, fairness concerns, the government's good faith, and the need to respect Parliament's legislative role of distributing government resources and policy making, all weighed in favour of limiting retroactive relief to the 12 months of arrears provided for by the legislation - See paragraphs 78 to 118.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The Supreme Court of Canada stated that a temporary suspension of a declaration of statute invalidity should occur only "where striking down the legislation without enacting something in its place would pose a danger to the public, threaten the rule of law or where it would result in the deprivation of benefits from deserving persons without benefiting the rights claimant" - See paragraph 121.

Government Programs - Topic 1222

Canada Pension Plan - Entitlement - Survivor's benefits - [See Civil Rights - Topic 953].

Cases Noticed:

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 5].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 20].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 20].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 21].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 44].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 71].

Stinson Estate v. British Columbia et al. (1999), 133 B.C.A.C. 15; 217 W.A.C. 15; 70 B.C.L.R.(3d) 233; 1999 BCCA 761, refd to. [para. 72].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 72].

Lew v. Lee, [1924] S.C.R. 612, varied [1925] A.C. 819 (P.C.), refd to. [para. 75].

Reid v. Batty, [1933] O.W.N. 496 (H.C.), affd. [1933] O.W.N. 817 (C.A.), refd to. [para. 75].

Turner v. London and South-Western Railway Co. (1874), L.R. 17 Eq. 561, refd to. [para. 77].

Gunn v. Harper (1902), 3 O.L.R. 693 (C.A.), refd to. [para. 77].

Hubert v. DeCamillis (1963), 41 D.L.R.(2d) 495 (B.C.S.C.), refd to. [para. 77].

Monahan v. Nelson (2000), 137 B.C.A.C. 251; 223 W.A.C. 251; 186 D.L.R.(4th) 193; 2000 BCCA 297, refd to. [para. 77].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 81].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, dist. [para. 82].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 83].

National Westminster Bank plc v. Spectrum Plus Ltd. et al., [2005] 2 A.C. 680; 338 N.R. 201; [2005] UKHL 41, refd to. [para. 87].

In re Spectrum Plus Ltd. (in Liquidation) - see National Westminster Bank plc v. Spectrum Plus Ltd. et al.

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1998] 1 S.C.R. 3; 223 N.R. 21; 212 A.R. 161; 168 W.A.C. 161; 126 Man.R.(2d) 96; 167 W.A.C. 96; 161 Nfld. & P.E.I.R. 124; 497 A.P.R. 124, refd to. [para. 88].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 90].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 90].

Edwards v. Canada (Attorney General), [1930] A.C. 124 (P.C.), refd to. [para. 94].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 94].

Blaikie v. Quebec (Attorney General) et al., [1979] 2 S.C.R. 1016; 30 N.R. 225, refd to. [para. 94].

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [para. 94].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321, refd to. [para. 94].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 94].

United States v. Johnson (1982), 457 U.S. 537, refd to. [para. 97].

Chevron Oil Co. v. Huson (1971), 404 U.S. 97, refd to. [para. 98].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 100].

Mackin v. New Brunswick (Minister of Justice) - see Rice, P.C.J. v. New Brunswick.

Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380, refd to. [para. 102].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al. (2007), 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, dist. [para. 108].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1, refd to. [para. 108].

Pattison (Jim) Industries Ltd. v. R., [1984] 2 F.C. 954 (T.D.), refd to. [para. 139].

Davidson v. Davidson Estate (1986), 33 D.L.R.(4th) 161 (B.C.C.A.), leave to appeal refused (1987), 79 N.R. 79; 44 D.L.R.(4th) vii (S.C.C.), refd to. [para. 139].

Kemp v. Rath (1996), 193 A.R. 26; 135 W.A.C. 26; 46 Alta. L.R.(3d) 1 (C.A.), refd to. [para. 139].

R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906; 119 N.R. 353; 46 O.A.C. 13; 73 Man.R.(2d) 1; 3 W.A.C. 1, refd to. [para. 140].

Andrews v. Ontario (Minister of Health) (1988), 64 O.R.(2d) 258 (H.C.), refd to. [para. 148].

Vogel and North, Re (1992), 79 Man.R.(2d) 208; 90 D.L.R.(4th) 84 (Q.B.), refd to. [para. 148].

Vogel v. Manitoba - see Vogel and North, Re.

Veysey v. Correctional Service of Canada, [1990] 1 F.C. 321; 29 F.T.R. 74 (T.D.), refd to. [para. 149].

Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R.(2d) 356 (S.C.), refd to. [para. 149].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 150].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 151].

Vogel and North, Re (1995), 102 Man.R.(2d) 89; 93 W.A.C. 89; 126 D.L.R.(4th) 72 (C.A.), refd to. [para. 152].

M. v. H. (1996), 96 O.A.C. 173 (C.A.), refd to. [para. 152].

Kane v. Ontario (Attorney General) (1997), 152 D.L.R.(4th) 738 (Ont. Gen. Div.), refd to. [para. 152].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 153].

Rosenberg et al. v. Canada (Attorney General) (1998), 108 O.A.C. 338; 38 O.R.(3d) 577 (C.A.), refd to. [para. 154].

Statutes Noticed:

Canada Pension Plan, R.S.C. 1985, c. C-8, sect. 44(1.1) [para. 13]; sect. 60(2) [para. 18]; sect. 72(1) [para. 16]; sect. 72(2) [para. 14].

Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, sect. 2(1) [para. 12].

Authors and Works Noticed:

Blackstone, William, Commentaries on the Laws of England (1769), vol. 1, pp. 59, 60 [para. 84].

Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, Issue No. 43, 1st Sess., 32nd Parliament (January 22, 1981), pp. 43:39 to 43:44 [para. 72].

Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, Issue No. 44, 1st Sess., 32nd Parliament (January 23, 1981), pp. 44:6 to 44:10 [para. 72].

Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, Issue No. 47, 1st Sess., 32nd Parliament (January 28, 1981), p. 47:88 [para. 72].

Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, Issue No. 48, 1st Sess., 32nd Parliament (January 29, 1981), pp. 48:4 to 48:49 [para. 72].

Choudhry, Sujit, and Roach, Kent, Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies (2003), 21 S.C.L.R.(2d) 205, pp. 209 [para. 159]; 210 [paras. 158, 159]; 211 [paras. 86, 138, 159]; 218 [para. 86].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 192 [para. 127].

Driedger, Elmer A., Statutes: Retroactive Retrospective Reflections (1978), 56 Can. Bar Rev. 264, pp. 268, 269 [para. 127].

Fisch, Jill E., Retroactivity and Legal Change: an Equilibrium Approach (1997), 110 Harv. L. Rev. 1059, pp. 1060 to 1063 [para. 98].

Hogg, Peter W., Constitutional Law of Canada (1992 Looseleaf Ed.) (2005 Update, Release 1), vol. 2, p. 55-2 [paras. 83, 138].

Reid, The Judge as Law Maker (1972), 12 J.S.P.T.L. 22, generally [para. 85].

Roach, Kent, Constitutional Remedies in Canada (1994) (2006 Looseleaf Update, Release 13), paras. 1.10 [para. 158]; 3.680 to 3.780 [para. 158]; 14.920 [para. 138].

Sampford, Charles, Retrospectivity and the Rule of Law (2006), pp. 211, 212 [para. 98].

Counsel:

Roslyn J. Levine, Q.C., and Paul Vickery, for the appellant/respondent on cross-appeal;

J.J. Camp, Q.C., R. Douglas Elliott, Sharon D. Matthews, Patricia A. LeFebour, R. Trent Morris and Sean M. Grayson, for the respondents/appellants on cross-appeal;

Daniel Guttman and Janet E. Minor, for the intervenor, Attorney General of Ontario;

Hugo Jean, for the intervenor, Attorney General of Quebec;

Nick Parker, for the intervenor, Attorney General of Alberta;

Written submissions only by Cynthia Petersen, for the intervenor, Egale Canada Inc.

Solicitors of Record:

Attorney General of Canada, Toronto, Ontario, for the appellant/respondent on cross-appeal;

Roy Elliott Kim O'Connor, Toronto, Ontario, for the respondents/appellants on cross-appeal;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;

Department of Justice, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Alberta Justice, Edmonton, Alberta, for the intervenor, Attorney General of Alberta;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, Egale Canada Inc.

This appeal was heard on May 16, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella and Rothstein, JJ., of the Supreme Court of Canada.

On March 1, 2007, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

LeBel and Rothstein, JJ. (McLachlin, C.J.C., Binnie, Deschamps and Abella, JJ., concurring) - see paragraphs 1 to 136;

Bastarache, J. - see paragraphs 137 to 165.