3 min

Hislop case drags through courts

Same-sex widowers still not getting money

Some same-sex widowers hoping to receive their Canada Pension Plan survivor benefits from the government will have to wait a while longer.

The case dragged closer to a resolution with an Ontario Superior Court of Justice ruling on Feb 29 but the courts still have to resolve payment for the plaintiff’s lawyers in the class-action suit.

Sean Grayson, an associate lawyer at Roy Elliott Kim O’Connor, says the government is dragging its feet on payment to certain survivors whose partners died between 1985 and 1998.

“The government is taking the position that until all the administrative matters are settled they aren’t paying anything,” he says.

The Feb 29 ruling determined the amount of interest the government had to pay on the damages owed to plaintiffs in the case since the original Ontario court ruling in 2003. The suit itself was settled in March 2007 when the Supreme Court ruled that it was unconstitutional to deny survivor benefits to same-sex widowers whose partners died after the Charter of Rights and Freedoms came into effect in 1985.

Prior to the Supreme Court ruling the government agreed in July 2005 to start paying pensions to those survivors affected by the suit. The government made it clear that it would take back the money if the appeal was successful. Those who took advantage of the offer have been paid since 2005 and will keep that money. However, the government cut off that offer in March 2007. Anyone involved in the suit who applied after that has received nothing.

The federal government changed the Canada Pension Plan (CPP) to include same-sex couples in 2000 and backdated the decision to Jan 1, 1998, meaning anyone whose partner died since then has been receiving payments. But survivors — led by longtime Toronto activist George Hislop — whose partners died between 1985 and 1998 sued the government in 2001, claiming such restrictions were unconstitutional.

In 2004 the Ontario Court of Appeal upheld a lower court ruling that the federal government owed survivor payments to any person whose partner died since the adoption of the Charter in 1985. The government appealed to the Supreme Court, which decided in 2007 — after Hislop’s death in 2005 — that the government discriminated.

However the court ruled the government did not have to pay full retroactive benefits to 1985. According to Grayson the court ruled that every plaintiff in the suit was entitled to at least 11 months retroactive payments, the time between the filing of the statement of claim in November 2001 and the change to CPP in 2000 — to be considered as damages rather than as CPP payments. However anyone who applied for benefits before the statement of claim was filed in 2001 was entitled to additional retroactive payments, but to no further back than August 1999.

Even though some of plaintiffs in the case have died their estates are still eligible to receive the retroactive payments if they were still alive as of Oct 2, 2003.

The issue of payment to the plaintiff’s lawyers revolves around the firm’s claim of 50 percent of the damages and all of the interest due on that money. The government is using a section of the CPP Act to claim that plaintiff’s counsel cannot be paid out of damages. The Feb 29 ruling upheld the claim, stating that plaintiff’s counsel is entitled to no payment.

Grayson says the plaintiffs are appealing that decision and until it’s resolved none of the damages will be paid. He says even if the appeal is successful the firm will probably lose money on the case. He says that in a class-action suit counsel is also usually entitled to multiply its fees by a factor agreed on by clients and the judge. In this case that factor was 4.8. Grayson says the firm is not seeking that full payment.

“The pre-judgment arrears are going to be maybe $4 million,” he says. “We’ve spent over $5 million as of last September.”

But Grayson says he’s hopeful the case will soon be resolved despite the government’s foot dragging.

“I think we’re in general agreement to do everything we can to expedite the matter,” he says.