(Minister of Education)], I believe that Hislop will complete the trilogy of
the three great constitutional remedy cases," says Douglas Elliott, of Roy
Elliott Kim O'Connor LLP, who is lead counsel with Patricia LeFebour on the
George Hislop, one of the lead class members whose partner died before Jan. 1,
1998, when new legislation giving gays and lesbians CPP survivor benefits took
effect, and the Attorney General of Canada are appealing a 2004 Ontario Court
of Appeal ruling that upheld a 2003 Superior Court decision striking down as
unconstitutional the CPP sections that applied only to same-sex survivors.
Interestingly, the Court of Appeal's Hislop ruling was co-penned by Justice
Louise Charron, who has since joined the Supreme Court of Canada.
is appealing because the Court of Appeal also set aside Justice Ellen
MacDonald's constitutional exemption to a CPP rule that limits retroactive
benefits to one year prior to the date at which the claimant applied for
her ruling, Mac-Donald acknowledged that this time limit was unfair, since gay
men and lesbians could not have been expected to officially apply for benefits
during the years in which the government adamently maintained their
ineligibility, says Elliott.
fact, the government did not acknowledge that same-sex couples were eligible
for survivor CPP benefits until it introduced the Modernization of Benefits and
Obligations Act in 2000 under pressure of developments in same-sex
jurisprudence, notably the Supremes' ground-breaking M. v. H. ruling in 1999.
However, the legislative reform stipulated it applied only to claimants whose
same-sex partners died after Jan. 1, 1998.
just kind of a Kafka-esque type situation to one day say you have no right to
apply and the next day to say you're too late to apply," notes Elliott, who
hopes the Supreme Court will rule in the same vein as it has in the past on the
the Doucet-Boudreau case, the Supreme Court of Canada made it very clear that
appellate courts should ordinarily defer to the choice of remedy that is
selected by the trial judge for that reason even if the remedy is unusual. [In
Hislop], the Court of Appeal failed to do that."
Supreme Court's 5-4 Doucet-Boudreau decision, heralded by many constitutional
scholars as 2003's most important Charter case, ruled French-speaking Acadian
parents are entitled to the right, under s. 23 of the Canadian Charter of
Rights and Freedoms, to have their children educated in the language of their
minority, in publicly funded French-language school facilities. Further, the
ruling declared that lower-court judges had the right to supervise the Supreme
Court's order to ensure compliance by the Nova Scotia government.
the top court's 1992 Schachter ruling, it upheld a Federal Court finding that
s. 32 of the Unemployment Insurance Act, 1971 offended s. 15(1) of the Charter,
by making unequal benefits available to natural and adoptive parents.
the Hislop case, the federal government is appealing the appeal court ruling,
warning that the court's remedy for the Charter violation could open the
floodgates of court rulings awarding retroactive government benefits to Charter
claimants in future cases with bigger stakes.
other thing that's unique about the Hislop case is that as a class action, it's
one of the few class actions that has gone to trial, and of course Charter
cases in Canada
are rarely done as class actions," says Elliott. "So we're entering into new
territory about how to come to grips with the division between the common
issues trial and what happens during the individual issues stage of the class
action that hasn't been done before.
class actions in Canada
have either failed to get past certification or once they've been certified,
they've eventually settled before trial."
who received the CBA's Sexual Orientation and Gender Identity Conference
(SOGIC) 2005 Hero Award for his work on this and other groundbreaking cases,
says he is heartened that the government has begun to make partial payment to
class members pending the appeal.
who has one of the largest claims for 19 years of arrears, in excess of
$100,000, for instance, recently received a $15,000 lump sum and is receiving
monthly benefits of $475, as have many of the other claimants, says Elliott.
will have to repay their payments if the Supreme Court of Canada reverses the
lower court rulings that said that the claimants were entitled to Canada
Pension Plan survivor's pensions," he says.
mid-August, the federal government also paid $2.2 million in costs to the
lawyers in the case, as ordered by the Ontario Court of Appeal, although they,
too, will have to repay the money if they lose at appeal.
the lawyers had received only one cost award for $45,000 a few years ago, says
Elliott, who estimates that the various lawyers across the country working on
the case have invested as much as $5 million to $6 million in legal work in the
five years since the case was officially launched in 2000.
counsel working on the class action are J.J. Camp and Sharon Matthews of
Vancouver's Camp Fiorante Matthews; Halifax lawyer Dawna Ring; Winnipeg's
Michael Law; William Selnes of Melfort, Sask.; and Vancouver lawyers Kenneth W.
Smith and Sarah Khan.