At least 1,000 queer widows are taking stock in the wake of a Mar 1 Supreme Court decision that will see the federal government cough up more than $50 million in previously withheld Canada Pension Plan payments.
“Everyone whose partner died after 1985 is included,” says Douglas Elliott, the lead lawyer in the case. “Everyone’s entitled, so they should apply.”
But it wasn’t a complete win. The Supreme Court limited the back payments widows can collect — extending back no earlier than August 1999 — and ruled that the estates of those widows who died before the original trial concluded in October 2003 will not benefit from the decision.
“We’re exploring what our options are in terms of continuing to fight for those people,” says Tamara Kronis, director of advocacy for the national queer lobby group Egale Canada.
Queer Canadians have been entitled to collect survivor benefits since 2000, when Parliament passed legislation that gave same-sex couples almost the same legal standing as straight couples. But it also set an arbitrary cut-off date of Jan 1, 1998; if your partner died after that date, you were entitled to collect, but if he or she died before, you got nothing.
This created what has become known as the “Hislop class,” referring to those whose partner died between 1985 — when gay people became legally protected by the Charter Of Rights And Freedoms — and 1998. The case bears the name of the late George Hislop who was one of the lead plaintiffs in the case. Hislop’s partner, Ron Shearer, died in 1986. Hislop died in October 2005.
“I’m just sorry that George didn’t live to see the end of it and to reap the benefits of the wonderful things he’s done for the community,” says Kronis. “That is, unfortunately, the slow pace of justice.”
Elliott says the next step will be to conclude the administrative proceedings with Justice Ellen McDonald, the Ontario Superior Court judge who presided over the 2003 trial. Details yet to be determined include the amount of interest to be awarded on back payments and the start date for back payments for those widows whose partners died before 1999 but who did not apply for survivors benefits, cannot prove that they applied or applied but were denied.
“I know this sounds crazy,” says Elliott, “but administratively the way they deal with these applications is if you filed an application in writing and they turned you down they consider that the application doesn’t exist.
“We don’t agree with that. If anyone applied before August of 1999 they should be getting back payments to August 1999 and the fact that the government illegally refused to pay them doesn’t change that.”
These administrative proceedings will mark the end of the legal battle that began in 2001 (see timeline on right).
“In terms of going to court, once Justice McDonald has finished her work… there’s nothing further legally to be done,” says Elliott.
But just because the legal avenues have been exhausted doesn’t mean that the fight is over.
“All the Supreme Court has said that it’s not constitutionally necessary for the government to pay back payments prior to August 1999. There’s two options left for those people who want to try and get the full back payments,” says Elliott.
The first is for survivors to request that the minister responsible for the Canada Pension Plan — currently Monte Solberg — to waive the restriction.
“What the court has said is that the government made a mistake about the requirement to pay same-sex survivors a pension, but that they did it in good faith and they tried to fix it in good faith. Therefore the constitution doesn’t require them to pay the full back payment, but the minister politically and legally has the power to do it if he chooses to.”
The second option would be to lobby the federal government to amend the existing legislation to allow for full back payments.
“Once we get [the administrative proceedings] wrapped up then it will shift back to the political arena and see if the politicians do the right thing,” says Elliott.
“It doesn’t come out of taxes, it comes out of a special fund which has, I believe, $100 billion right now. This includes the money that was paid in by all of these people over the years.
“For the 400-odd people who died before the trial, that money has effectively been confiscated, which is an even more compelling reason to pay the people who are still alive.”