The Supreme Court of Canada released its decision on March 1, 2007.

We Won! However, the Court did not give us all the retroactive payments we asked for.

All class members will be entitled to payments on an ongoing basis and will be entitled to some retroactive payments. Each member's eligibility for retroactive payments will be assessed as soon as possible and you will be notified in due course. Those who have already received some retroactive payments may be entitled to a further payment. For more information see below.

SUPREME COURT OF CANADA UPHOLDS EQUALITY FOR SAME SEX RELATIONSHIPS AND CONFIRMS PENSIONS FOR SURVIVOR OF SAME SEX RELATIONSHIPS

The Supreme Court of Canada released its decision in Hislop v. Canada on March 1, 2007.  We are pleased to report that as a result of the decision living class members will be entitled to payments for survivor benefits from the CPP on an ongoing basis.  If you received funds under the interim arrangement that was reached in July 2005, you will be entitled to retain that money and will not have to pay it back to the government. You will continue to receive your monthly survivor's pension as long as you live.
 
On the question of arrears, the Supreme Court adopted a middle ground between our position (arrears to one month following the date of the contributing partner for everyone, regardless of whether they had filed an application) and the federal government position (if any pensions were awarded, they would be limited to 12 months from the date of new applications).  From the judgment generally, it appears that if a living class member did not apply prior to the filing of the lawsuit, they may be eligible to receive arrears dating back to one year before the filing of our lawsuit, or November 27, 2000. Those who had filed written application may be eligible for arrears dating back to August 1999. The precise amount of arrears you will receive will be determined in the coming months as part of the administration of this class action judgment under the supervision of Justice Macdonald. However, it is clear from the ruling that eligible class members will receive more than 12 months of arrears even if that class member has never applied. 
 
In respect of estates, if the individual was alive at the time argument finished before Justice MacDonald (October 2, 2003) and they are otherwise eligible, they can receive benefits. This includes the Estate of George Hislop.  Otherwise, we regret to advise that class members who died before we finished the trial will not be entitled to benefits as the Supreme Court found that s. 15 does not apply to estates.
Some media have reported that the case was lost, or that class members are entitled to only 12 months of arrears. Those reports are not correct.
 
If you know someone who is eligible for this pension but has not been in contact with members of our national legal team, please encourage them to do so.
 
We will be updating this web site and contacting class members as to applications for survivor benefits in due course.

Note:   If you were under the age of 35 when your partner died you are caught by other sections of CPP legislation.  You are not eligible to be a member of the class.  This applies to everyone, including married heterosexual couples.

The judgment (Citation:  Canada(Attorney General) v. Hislop 2007 SCC 10) can be found at:  http://scc.lexum.umontreal.ca/en/2007/2007scc10/2007scc10.html

CPP Class Action gets early Appeal

The government has appealed the decision. We have obtained an expedited hearing date and are pleased the Ontario Court of Appeal hearing will be June 10 and 11, 2004.

ONTARIO COURT OF APPEAL CONFIRMS SAME SEX SURVIVORS ENTITLED TO PENSIONS UNDER THE CPP. The Court did, however, allow the government's appeal on the question of arrears. Everyone will get pensions back to 2000. The only question is whether people will get more arrears than that. Follow the links to a synopsis issued by the Court of Appeal and to the full judgment. Click here for more information.

The Attorney General of Ontario - Court of Appeal for Ontario File Number C41224. Click here to view judgment

Kenneth W. Smith is pleased to be working with other lawyers across Canada on a Class Action lawsuit which challenges the denial of CPP pensions to lesbian and gay surviving spouses. Working with J.J. Camp, Q.C. and Sharon Matthews a suit was commenced in British Columbia on November 27, 2001. A separate class action, based on the same grounds was commenced in Toronto on the same day. The other lawyers involved are the firm of McGowan Elliott & Kim in Toronto, lead by Doug Elliott, Dawna Ring, Q.C. of Halifax, Micheal Law, of Winnipeg, William Selnes of Melfort, Saskatchewan, and Martha McCarthy of Toronto.

This is believed to be the first class action lawsuit addressing sexual orientation discrimination in the world.

When the Federal Government changed many laws in 2000 to include sexual orientation in order to conform with the Charter of Rights and Freedoms, the benefits under the CPP for survivors were limited to those survivors of same sex couples who lost their partners after January 1, 1998. The lawsuits allege that the January 1, 1998 cut off date was purely arbitrary and without legal justification. The lawsuit also alleges that while the federal government and its agencies collect CPP contributions from all Canadians regardless of their sexual orientation, it does not provide equal benefits on that basis.

Gays and lesbians have dutifully paid into the plan since its inception, but have been discriminated against by being excluded from some of its benefits. It is important to note that this case is not about taxpayers’ money. The CPP is funded by the contributions of working Canadians and the investment of that money. There is no government money in the Plan.

The case was first certified to go to trial in British Columbia, after several objections by the government were dealt with. As matters proceeded with the Ontario case, a proposal was agreed to between the lawyers for the Class and the lawyers for the federal government that the two cases, in B. C. and Ontario, should be combined into a single national Class Action. It was agreed the case would proceed in Toronto.

The Representative Plaintiffs from B. C., Eric Brogaard and Gail Meredith joined George Hislop of Toronto, Albert McNutt of Truro, Nova Scotia, and Brent Daum of Melfort, Saskatchewan as the plaintiffs in the case.

All of these plaintiffs had loving, supporting relationships with their deceased partners but have been excluded from the survivor’s benefit because their partner died before January 1, 1998. The number of people in the class is expected to be approximately 1500.

The trial of this claim was set for September of 2003.

Click here for Background information on the
Same Sex Benefits Class Action Lawsuit

The judge has awarded survivor’s benefits to all those who lost partners after the effective date of the Charter, April 17, 1985. The benefits are available one month after the date of death. Interest was awarded from that point or February 1, 1992, whichever is later.

The Federal Government has 30 days to appeal the decision. Because of the holiday break and the new government ministers, it is expected a notice of appeal will be filed and then a decision taken whether to proceed with an appeal.

Even if the government does not appeal it will take at least several weeks into 2004 before the logistics of payments to members of the class will be in place.

You can still become a member of the class if you have not already done so. Just contact us. More information will follow later.

Click Here For Judgment