And Hislop makes three

TheHislop v. Canada(Attorney General) case is poised to form the cornerstone of an importantseries of constitutional remedy cases in early 2006, says the lead lawyerrepresenting about 500 class action members whose same-sex partners paid intothe Canada Pension Plan and then died between 1985 and 1998.

"With Schachter [v. Canada] and Doucet-Boudreau [v. Nova Scotia (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 case.

"Hislop is a nice, clean s. 15 [Charter] case and if [the Supreme Court justices] take the same approach as the lower courts did to the s. 15 aspect of it, then it may restore some of the clarity that has been diminished by the [Newfoundland (Treasury Board) v. Newfound-land and Labrador Association of Public and Private Employees (NAPE)] ruling and the Auten [v. British Columbia (Attorney General)] cases."

Both 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.

Hislop 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 benefits.

In 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.

In 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.

"It's 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 issue.

"In 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."

The 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.

In 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.

In 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.

"The 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.

"Most class actions in Canada have either failed to get past certification or once they've been certified, they've eventually settled before trial."

Elliott, 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.

Hislop, 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.

"They 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.

In 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.

Previously, 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.

Other 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.