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SCC focuses on remedy in CPP same-sex case

The Supreme Court of Canada recently heard oral arguments in Hislop v. Canada, a class action challenging sections of the Modernization of Benefits and Obligations Act (2000). This case raises important questions as to the responsibilities of courts and legislatures to remedy longstanding Charter infractions.

The Supreme Court of Canada recently heard oral arguments in Hislop v. Canada, a class action challenging sections of the Modernization of Benefits and Obligations Act (2000). This case raises important questions as to the responsibilities of courts and legislatures to remedy longstanding Charter infractions.

MOBA established an undifferentiated regime of benefits and obligations for conjugal relationships under 68 federal statutes, including the Canada Pension Plan, a mandatory universal social insurance program that constitutes an important component of Canada's retirement income system. Under MOBA, same-sex partners became entitled to CPP survivor benefits.

MOBA imposed two specific temporal conditions on these pensions, which had no application to opposite-sex couples. First, eligibility arose only for deaths on or after Jan. 1, 1998. Second, payments began only after July 31, 2000. Generally applicable CPP rules applied to the new pensions to ensure prompt application for survivor pensions.

The class members argued successfully at trial and on appeal that these conditions failed to alleviate the discriminatory treatment of same-sex relationships since April 1985, when s. 15 of the Charter came into effect.

Thus, the trial and appellate courts rejected all the government's arguments: that MOBA was fair and generous, consistent with established modes of legislative change and judicial remedial practice, and compatible with evolving social values; that MOBA established a temporal, not a status-based, distinction, which included both the benefits and obligations that attach to conjugal relationships; that there was a pressing and substantial objective for the conditions applied only to same-sex relationships.

The SCC hearing focused primarily on remedy, which appeared to be the main reason for the federal government's appeal. In particular, it strongly argued that there was no constitutional imperative obligating Parliament to fully remedy all Charter claims back to 1982, or for s. 15, to 1985.

Both courts below had invalidated MOBA's specific conditions that restricted eligibility for same-sex survivors' pensions. The Ontario Court of Appeal, however, rejected the trial court's second remedial ruling, a constitutional exemption from the general CPP restrictions that imposed deadlines and limitation periods to ensure prompt application.

These general restrictions operated in a harsh way for class members. CPP administrators had both discouraged and rejected their applications since 1985. Although the department eventually developed a settlement strategy for full pensions, it applied only to applicants who persisted to the point of establishing a precedent. It never became generally applicable, nor was it publicly announced. Such persistence was particularly burdensome to class members due to their heightened need for personal privacy.

At the SCC, the federal government reiterated its arguments. It took particular objection to the idea that the claimants would receive back-dated pensions free of the obligations imposed by MOBA under other federal statutes.

The class members, in turn, argued that the trial court's remedial orders addressed the full scope of the infringed rights, in their substance and administration. There would be no wide-ranging precedent, because other cases would raise different considerations for s.1 justification, especially as to impact on government financial planning and reliance.

Support for this argument came from the government's expert at trial, who described the financial impact of full restitution back to 1985 as minimal. The total estimated liability, about $63 million, would constitute merely 0.001 per cent of the accumulated fund. CPP premiums or pension rates would be unaffected.

This easy accommodation of the pension claims may appear odd, until one remembers that employed individuals in same-sex relationships (and their employers) have paid into this fund, with no depletion for survivor pensions, since the creation of survivor pensions in 1968.

Justice Ian Binnie suggested during oral arguments that the mandatory CPP premiums may be understood as purchasing a vested right to the statutory pension. This characterization would limit its force of this case as a precedent.

Lorraine E. Weinrib is a professor at the Faculty of Law, University of Toronto.

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