The Supreme Court of Canada heard appeals from both parties in the landmark queer Canada Pension Plan (CPP) case, May 16.
The case stems from a class-action suit launched in 2001 by gays and lesbians whose partners paid into the CPP but died prior to 1998. The federal government extended spousal status to gay and lesbian widows in 2000, thereby qualifying them for CPP survivor benefits, but with a catch: their partners must have died after 1998 to count.
George Hislop and the other members of the suit objected to what they called the government’s arbitrary cut-off date and demanded survivor benefits be granted, with arrears, to queers whose partners died after 1985, when Canada’s Charter of Rights came into effect–not 1998. The government refused.
In court last week, government lawyers told the country’s top justices that to grant retroactive CPP survivor benefits to queers would cost $80 million.
“This is not a question of generosity on the part of the Crown. It is a matter of right,” countered the gay plaintiffs’ lawyer, Doug Elliott. Besides, he noted, the money would amount to one one-thousandth of one percent of the plan’s assets and would not force the CPP to raise premiums for others paying into the plan.
The survivors and their late partners all paid into the CPP, Justice Ian Binnie pointed out. “They purchased rights under the Canada Pension Plan by contributing to it. Why should they suffer an unequal benefit?”
Justice Marshall Rothstein–the court’s most recent appointee and the first justice named by Prime Minister Stephen Harper–seemed less convinced. “There’s still a financial consequence,” he said. “The $80 million has to come from somewhere.”
The hearing in Supreme Court follows rulings from the Ontario Superior Court and Court of Appeal. Both courts ruled that the 1998 cut-off date violated the Charter of Rights and that queer widows whose partners died after 1985 should be eligible for benefits, but the Court of Appeal limited back-payments to just one year.
The Supreme Court now has to decide if queer widows are entitled to the same survivor benefits straight widows get and, if so, whether they should receive any back-payments. The court has yet to set a date for its ruling.