Toronto
3 min

Delayed justice

In 2001 a group of widows launched a class-action suit against the federal government. Their argument was simple. Their same-sex partners had died after the Charter came into force in 1985, protecting them from discrimination as homos, but before 1998, the arbitrary date the feds chose to start paying out Canadian Pension Plan (CPP) benefits to same-sex survivors. They had been discriminated against and they wanted the money owing to them.

Despite three decisions in their favour — the feds appealed all the way up to the Supreme Court — some of those survivors are still waiting to see the money.

“They want their money as soon as possible and they have been beleagured by the delays in getting it,” wrote Justice J Ellen Macdonald in a Feb 29 ruling in the ongoing saga.

No kidding. The Supreme Court ruled in favour of the plaintiffs in March 2007 — settling on a middle ground on the question of retroactive payments — but the feds won’t fork over the cash to some survivors until all the administrative details related to the case have been resolved. Now that’s just mean.

None of these folks were spring chickens when the lawsuit began and time is of the essence. George Hislop, one of the lead plaintiffs in the case, passed away in October 2005 before the case even reached the Supreme Court. He’s not the only one to have been outlived by this painfully slow process. Although the estates of those class members who were alive on Oct 2, 2003 — the close of the first trial — are eligible to receive the monies owed, for the folks who actually experienced the discrimination justice delayed really is justice denied.

As it happens Hislop received a few months of CPP cheques just before his death. In July 2005 — after the Ontario Court of Appeals upheld the original decision and the plaintiffs brought a motion to compel payment — the feds offered monthly pension cheques to those affected by the suit, but warned it would claw back the money if the Supreme Court ruled in its favour. In March 2007 the government revoked the offer. Anyone who got in on it before then will keep getting cheques but anyone who played it safe will now have to wait until all the Ts have been crossed before they get a penny.

The most recent decision, which has been appealed by the plaintiffs, dealt with the rate of interest to be applied to retroactive payments and the government’s claim — upheld by the judge — that the plaintiffs’ lawyers cannot be paid out of the settlement.

What floors me in all of this is the government’s dickering on the question of interest. It’s because of the government’s repeated appeals, in spite of what Macdonald called “clear messages” from the courts, that this money is still in the government’s hands and not in the hands of the survivors, people who could have long since invested it however they saw fit. In the meantime that money has been accruing some decent interest in the CPP fund — more than 12 percent in the post-judgment period — but the feds only want to pay out the provincial statutory rates — less than five percent.

Macdonald compromised, awarding five percent in the prejudgment period and eight percent in the post-judgement period.

“While it can be said that fixing a rate of interest [is] an inherently arbitrary decision I have considered in detail all of the circumstances that faced the plaintiffs throughout the processes of this class action,” writes Macdonald in her decision. “Having presided over the trial on the merits and having heard the testimony of the surviving spouses it was clear that they have endured extreme hardship as a result of the discrimination they faced. It required a great deal of temerity on their part to persist in this litigation through all levels of court.”

Damn right it did and they deserve to be able to get on with their lives instead of being punished for continuing to fight for fair treatment. The government needs to start paying out monthly payments to all of the known class members now instead of holding them hostage to this process.