Withler v. Canada (Attorney General), [2011] N.R. TBEd. MR.002

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 17, 2010
• Jurisdiction: Canada (Federal)
• Citations: [2011] N.R. TBEd. MR.002;2011 SCC 12;300 BCAC 120;EYB 2011-187170;DTE 2011T-181;329 DLR (4th) 193;[2011] 1 SCR 396;[2011] EXP 867;229 CRR (2d) 329;[2011] 4 WWR 383;JE 2011-461;[2011] ACS no 12;15 BCLR (5th) 1;[2011] SCJ No 12 (QL);[2011] EXPT 511;412 NR 149

Withler v. Can. (A.G.) (SCC) - Charter - Equality rights - Age discrimination

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

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

Temp. Cite: [2011] N.R. TBEd. MR.002

Hazel Ruth Withler and Joan Helen Fitzsimonds (appellants) v. Attorney General of Canada (respondent) and Attorney General of Ontario and Women's Legal Education and Action Fund (intervenors)

(33039; 2011 SCC 12; 2011 CSC 12)

Indexed As: Withler v. Canada (Attorney General)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

March 4, 2011.

Summary:

A class action was brought to challenge s. 47(1) of the Public Service Superannuation Act (PSSA), s. 60(1) of the Canadian Forces Superannuation Act (CFSA) and their attendant regulations. These provisions created a "supplementary death benefit" which was paid on the death of a plan member to a named beneficiary of an amount equal to twice the salary of the plan member. However, once the CFSA plan member attained the age of 60, and in the case of a PSSA plan member the age of 65, the benefit payable began to reduce by 10 percent per year to the date of death. The plaintiffs claimed that the impugned provisions violated s. 15 of the Charter.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. 101, dismissed the class action. The court held that the plaintiffs had standing to bring the class action. However, the provisions did not constitute age discrimination under s. 15. The plaintiffs appealed. The Attorney General of Canada cross-appealed.

The British Columbia Court of Appeal, Rowles, J.A., dissenting, in a decision reported at 263 B.C.A.C. 257; 443 W.A.C. 257, dismissed the appeal and the cross-appeal. The plaintiffs appealed.

The Supreme Court of Canada dismissed the appeal.

Civil Rights - Topic 928

Discrimination - Government programs - Pension legislation - A class action was brought to challenge s. 47(1) of the Public Service Superannuation Act (PSSA), s. 60(1) of the Canadian Forces Superannuation Act (CFSA) and their attendant regulations - These provisions created a "supplementary death benefit" (SDB) which was paid on the death of a plan member to a named beneficiary of an amount equal to twice the salary of the plan member - However, once the CFSA plan member attained the age of 60, and in the case of a PSSA plan member the age of 65, the benefit payable began to reduce by 10 percent per year to the date of death - The plaintiffs claimed that the impugned provisions violated s. 15 of the Charter (age discrimination) - The trial judge held that the comparator group was "all civil servant and members of the armed forces who received the full SDB, not reduced on the basis of age"- She closely followed the test in Law v. Canada (Minister of Employment and Immigration) (SCC 1999) and concluded that "the supplemental death benefit was the part of a larger scheme comprised of group insurance and pensions designed to look after the changing needs of an employee as he or she remained in the workforce and then retired. At the younger ages, the supplementary death benefit provided a limited stream of income for unexpected death where the surviving spouse is not protected by a pension. At older ages, the purpose of the supplementary death benefit is for expenses associated with last illness and death. The comprehensive plan, while not a perfect fit for each individual, did not meet the hallmarks of discrimination given that it was a broad-based scheme meant to cover the competing interests of the various age groups covered by the plan" and dismissed the action - The plaintiffs appealed - The British Columbia Court of Appeal dismissed the appeal - The Supreme Court of Canada affirmed the dismissal of the appeal - The trial judge and the majority of the Court of Appeal disclosed no error in methodology - See paragraphs 68 to 82.

Civil Rights - Topic 929

Discrimination - Government programs - On the basis of age - [See Civil Rights - Topic 928 ].

Civil Rights - Topic 999.5

Discrimination - Employment - Pension benefits - [See Civil Rights - Topic 928 ].

Civil Rights - Topic 5516

Equality and protection of the law - General principles and definitions - Tests for inequality - General - The Supreme Court of Canada discussed the application of s. 15 of the Charter and stated that "[t]he first way that substantive inequality, or discrimination, may be established is by showing that the impugned law, in purpose or effect, perpetuates prejudice and disadvantage to members of a group on the basis of personal characteristics within s. 15(1). Perpetuation of disadvantage typically occurs when the law treats a historically disadvantaged group in a way that exacerbates the situation of the group. [...] The second way that substantive inequality may be established is by showing that the disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group. Typically, such stereotyping results in perpetuation of prejudice and disadvantage. [...] Whether the s. 15 analysis focuses on perpetuating disadvantage or stereotyping, the analysis involves looking at the circumstances of members of the group and the negative impact of the law on them. The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation. [...]  Both the inquiries into perpetuation of disadvantage and stereotyping are directed to ascertaining whether the law violates the requirement of substantive equality. Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group. It follows that a formal analysis based on comparison between the claimant group and a 'similarly situated' group, does not assure a result that captures the wrong to which s. 15(1) is directed - the elimination from the law of measures that impose or perpetuate substantial inequality. What is required is not formal comparison with a selected mirror comparator group, but an approach that looks at the full context, including the situation of the claimant group and whether the impact of the impugned law is to perpetuate disadvantage or negative stereotypes about that group." - See paragraphs 29 to 40.

Civil Rights - Topic 5658

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

Civil Rights - Topic 5671.5

Equality and protection of the law - Particular cases - Government compensation programs - [See Civil Rights - Topic 928 ].

Civil Rights - Topic 8664

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Application - The Supreme Court of Canada discussed the application of s. 15 and the identification of a "mirror comparator group" - The court stated that "[t]he Court's s. 15(1) jurisprudence has consistently affirmed that the s. 15(1) inquiry must focus on substantive equality and must consider all context relevant to the claim at hand. The central and sustained thrust of the Court's s. 15(1) jurisprudence has been the need for a substantive contextual approach and a corresponding repudiation of a formalistic 'treat likes alike' approach. [...] When the Court has made comparisons with a similarly situated group, those comparisons have generally been accompanied by insistence that a valid s. 15(1) analysis must consider the full context of the claimant group's situation and the actual impact of the law on that situation." - As for the mirror comparator group, the court affirmed that it "is one that 'mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought' except for the personal characteristic on which the claim was based. [...] the theme underlying virtually all of this Court's s. 15 decisions is that the Court in the final analysis must ask whether, having regard to all relevant contextual factors, including the nature and purpose of the impugned legislation in relation to the claimant's situation, the impugned distinction discriminates by perpetuating the group's disadvantage or by stereotyping the group." - The court also discussed the concerns with the use of mirror comparator groups and concluded that "a mirror comparator group analysis may fail to capture substantive inequality, may become a search for sameness, may shortcut the second stage of the substantive equality analysis, and may be difficult to apply. In all these ways, such an approach may fail to identify - and, indeed, thwart the identification of - the discrimination at which s. 15 is aimed. The question then is how comparison figures in the s. 15(1) analysis." - See paragraphs 41 to 60.

Civil Rights - Topic 8664

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Application - The Supreme Court of Canada discussed the application of s. 15 and stated that "equality is a comparative concept [...] The substantive equality analysis under s. 15(1) [...] proceeds in two stages: (i) Does the law create a distinction based on an enumerated or analogous ground? and (ii) Does the distinction create a disadvantage by perpetuating prejudice and stereotyping? [...] Comparison plays a role throughout the analysis. The role of comparison at the first step is to establish a 'distinction'. Inherent in the word 'distinction' is the idea that the claimant is treated differently than others. Comparison is thus engaged, in that the claimant asserts that he or she is denied a benefit that others are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1). [...]  The analysis at the second step is an inquiry into whether the law works substantive inequality, by perpetuating disadvantage or prejudice, or by stereotyping in a way that does not correspond to actual characteristics or circumstances. At this step, comparison may bolster the contextual understanding of a claimant's place within a legislative scheme and society at large, and thus help to determine whether the impugned law or decision perpetuates disadvantage or stereotyping." - See paragraphs 61 to 67.

Civil Rights - Topic 8668

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

Government Programs - Topic 3867

Pensions for government employees or R.C.M.P. - Benefits and other sums payable - Supplementary death benefit plan - [See Civil Rights - Topic 928 ].

Cases Noticed:

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 2].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 22].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 29].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203; 2009 SCC 9, refd to. [para. 29].

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 29].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 29].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 33].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 35].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 35].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, refd to. [para. 43].

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 46].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 48].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 50].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329; 2000 SCC 28, refd to. [para. 58].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 13].

Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17, sect. 60(1) [para. 6 et seq.].

Public Service Superannuation Act, R.S.C. 1985, c. P-36, sect. 47(1) [para. 6 et seq.].

Authors and Works Noticed:

Faraday, Fay, Denike, Margaret, and Stephenson, Kate M., Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), p. 432 [para. 65].

Gilbert, Daphne, and Majury, Diana, Critical Comparisons: The Supreme Court of Canada Dooms Section 15 (2006), 24 Windsor Y.B. Access Just. 111, p. 138 [para. 59].

Gilbert, Daphne, Time to Regroup: Rethinking Section 15 of the Charter (2003), 48 McGill L.J. 627, generally [para. 58].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.) (2010 Update, Release 1), vol. 2, p. 55-34 [para. 56].

Iyer, Nitya, Categorical Denials: Equality Rights and the Shaping of Social Identity (1993), 19 Queens L.J. 179, generally [para. 58].

McIntyre, Sheila, and Rodgers, Sanda, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (2006), p. 63 [para. 59].

Moreau, Sophia Riebetanz, Equality Rights and the Relevance of Comparator Groups (2006), 5 J.L. & Equality 81, generally [para. 65].

Ponthier, Dianne, Connecting Grounds of Discrimination to Real People's Real Experiences (2001), 13 C.J.W.L. 37, generally [paras. 58, 65].

Wrights, Andrea, Formulaic Comparisons: Stopping the Charter at the Statutory Human Rights Gate, in Faraday, Fay, Denike, Margaret, and Stephenson, Kate M., Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), p. 432 [para. 65].

Young, Margot, Blissed Out: Section 15 at Twenty, in McIntyre, Sheila, and Rodgers, Sanda, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (2006), p. 63 [para. 59].

Counsel:

Joseph J. Arvay, Q.C., John C. Kleefeld and Elin R.S. Sigurdson, for the appellants;

Donald J. Rennie, Sharlene Telles-Langdon and Dale Yurka, for the respondent;

Robert E. Charney and Matthew Horner, for the intervenor, the Attorney General of Ontario;

Daphne Gilbert, Joanna Radbord and Joanna Birenbaum, for the intervenor, the Women's Legal Education and Action Fund.

Solicitors of Record:

Arvay Finlay, Vancouver, B.C., for the appellants;

Department of Justice, Toronto, Ontario, for the respondent;

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

Women's Legal Education and Action Fund and Martha McCarthy & Company, Toronto, Ontario, for the intervenor, the Women's Legal Education and Action Fund.

This appeal was heard on March 17, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following decision of the Supreme Court was delivered in both official languages by McLachlin, C.J.C., and Abella, J., on March 4, 2011.