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
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
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.
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.
here for more information.
Attorney General of Ontario - Court of Appeal for Ontario File Number
here to view judgment
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.
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 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.
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.
here for Background information on the
Same Sex Benefits Class Action Lawsuit