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Lesbian pension claim dismissed

Complaint outside our jurisdiction and filed late, BC Tribunal rules

The BC Human Rights Tribunal has dismissed a case by a lesbian who says being denied spousal pension benefits is discrimination on the basis of sexual orientation.

The case is between Kathleen Ellis and the Telecommunication Workers Pension Plan (TWPP), a plan registered under the federal Income Tax Act.

Ellis’s late spouse (who is not named in the April 26 ruling) retired from Telus in 1995 before the Income Tax Act was amended to include same-sex relationships. As such, the spouse could not name Ellis as her beneficiary.

However, the TWPP amended its definition of spouse to include same-sex couples in April 1998.

Ellis’s spouse received benefits from June 1995 until her death in November 2008.

In August 2009, Ellis asked the TWPP why she wasn’t receiving spousal benefits. She was told the amendment was not retroactive beyond 1998 and did not apply to her spouse.

Ellis filed a complaint alleging discrimination on the basis of sexual orientation in employment.

The TWPP asked the BC tribunal to dismiss the complaint because it falls under federal jurisdiction, was filed late and because the discriminatory action occurred on the retirement date in 1995.

Tribunal member Barbara Humphreys agreed.

“I have decided to dismiss the complaint for lack of jurisdiction,” Humphreys wrote in her decision. “If I am wrong in this conclusion, I have decided that the complaint is out of time, it is not a continuing contravention, and it is not in the public interest to accept it.”

Telus is an interprovincial company with a unionized workforce, both of which are federally regulated.

Humphreys found the dates for determining the timeliness of the discrimination are in 1995, when the spouse could not name Ellis as her spouse, or in 1998 when the TWPP amended its definition.

There was no repetition of discriminatory behaviour, she ruled.

Further, she said, Ellis filed the complaint 12-15 years after the alleged discriminatory event. She noted Ellis provided reasons for her failure to file a complaint promptly after her spouse’s death, but did not provide reasons for her failure to file a complaint in 1995 or 1998.

Ellis told the tribunal that if it finds it does not have jurisdiction, she intends to file a complaint with the Canadian Human Rights Commission.