Court Rules Denying Retro CPP Benefits To Widowed Gays Unconstitutional

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Denying retroactive CPP benefits to widowed gays unconstitutional, court rules

Colin Perkel
Canadian Press

November 28, 2004

TORONTO (CP) - Denying millions of dollars worth of retroactive pension payments to widowed gays and lesbians is an irrational and unconstitutional violation of their rights and Ottawa's commitment to equality, Ontario's highest court ruled Friday.

In a strongly worded decision, the Appeal Court sided with a landmark lower-court ruling that the federal government was wrong to refuse the Canada Pension Plan back payments, estimated at about $80 million, when it extended equality rights to same-sex couples in 2000.

"Excluding many of those who were intended to be included is not rationally connected to the objective of the law, which is to end the discriminatory exclusion of same-sex partners from CPP benefits," the court said in its unanimous written ruling.

Gay activists were delighted.

"I always knew that Canadians were interested in fair play and I think the courts have borne that out," said George Hislop, 77, one of five lead plaintiffs in the case.

"The charter says we are all equal and you can't be a little bit equal. You've got to be there all the way."

In Ottawa, Justice Minister Irwin Cotler said he wanted to study the ruling before deciding whether to appeal to the Supreme Court of Canada.

"This is not a case about same-sex nor is it a case about gay and lesbian rights," Cotler said.

"The implications of this case have to do with the whole question of federal benefits programs and policy."

In 2000, the federal government granted various economic rights to same-sex couples. However, it barred them from collecting CPP survivor benefits if their partners had died before Jan. 1, 1998.

In response, Hislop and others launched a class-action lawsuit. They argued they should have been eligible to collect the benefit retroactive to April 17, 1985 - when their equality rights were enshrined in the Charter of Rights and Freedoms.

In December 2003, Ontario Superior Court Justice Ellen Macdonald sided with the plaintiffs.

In its appeal of that groundbreaking ruling, Ottawa said it wanted clarification of Parliament's ability to determine when laws take effect.

It also argued the lower-court decision could hamper the introduction of new social programs if retroactivity was always a factor.

An estimated 1,500 gays and lesbians across Canada are eligible for survivor benefits.

Initially, the amount of retroactivity was pegged at as much as $400 million, but more recent actuarial data suggested it would be closer to $80 million.

Hislop, whose partner died in 1986 after a 28-year spousal relationship, has estimated he would be entitled to receive about $150,000.

The Appeal Court did side with Ottawa in agreeing that it need not pay retroactive benefits to about 200 estates of claimants who have died in the interim.

Quebec was not part of the lawsuit because it operates a separate pension plan.


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