The fight for pensions for widowed gay and lesbian partners took its final step on May 16, when the Supreme Court Of Canada heard arguments in the case.
“Gays and lesbians are human beings entitled to equality,” Douglas Elliott, the plaintiff’s lead lawyer, told the court. “This is not a question of generosity on the part of the Crown. It is a matter of right.”
The class-action lawsuit, unusual in Canada, was launched in 2001 after the federal government extended CPP survivors’ pension benefits to same-sex common-law couples, but set an arbitrary retroactive cutoff date of Jan 1, 1998.
Lawyers for the same-sex widows have argued that the federal government is discriminating by refusing to pay Canada Pension Plan (CPP) survivor benefits to those whose partners died before Jan 1, 1998. They contend that benefits should be paid to all survivors whose partners died since 1985, when the Charter Of Rights And Freedoms came into effect.
The widows, which number about 1,500, won the class-action suit at the Ontario Superior Court Of Justice in 2003, but the federal government appealed the ruling. In 2004 the Ontario Court Of Appeal delivered a ruling that agreed in part with the widows, in part with the government, so both parties appealed to the Supreme Court.
Lawyers for the federal Justice Department told the Supreme Court that the government was following precedent in setting a cut-off date. If the government does not have the power to set cut-off dates on retroactive payments, lawyers argued it could set a costly example in other cases.
“Parliament did exactly what this court has done in almost every Charter case,” said federal lawyer Roslyn Levine. “It applied the new law without retroactive effect.”
The government began making interim retroactive payments to widows in 2005, although the government has said it will claw back that money if the Supreme Court rules in its favour. If the plaintiffs are successful, the cost to the pension plan is expected to be about $80 million. Although the plaintiffs argued that that cost will be minimal, some justices seemed concerned.
Justice Marshall Rothstein said the cost could not be ignored.
“The $80 million has to come from somewhere,” he said.
But other justices noted that the survivors and their late partners had paid into the pension plan.
“They purchased rights under the Canada Pension Plan by contributing to it,” said Justice Ian Binnie. “Why should they suffer an unequal benefit?”
The court also heard arguments about two other issues where the Ontario Court Of Appeal ruled against the plaintiffs in 2004.
The Ontario court ruled that those applying for pensions were eligible for only one year of pension arrears from the time they filed a claim. The court also ruled that the dead were not allowed to bring suits, a ruling that would have excluded the estates of hundreds of survivors who have died since the lawsuit was filed.
In the last issue of Xtra, Elliott said that the ruling on arrears failed to take into account the fact that before 2001, queers could not claim survivor benefits at all.
“It was pointless for gay people to file claim in those days. This administrative time limit should not stand in the way of securing a full pension. For a lot of these guys, their arrears are more valuable than their future pensions because they’re getting up there.”
Missing from the Supreme Court proceedings was represent-ative plaintiff George Hislop, who passed away last year.
Hislop’s partner of 28 years, Ronnie Shearer, died in April, 1986, after the Charter came into effect. After the government began including same-sex survivors, Hislop applied twice for CPP benefits, but was turned down. Hislop never got the opportunity to spend his money.
Sharon D Matthews, one of the lawyers representing the widows, says the money is not coming from the public purse, but from CPP coffers which the widows have already paid into.
“I’m excited and I’m hopeful to get an effective remedy,” she said outside the courtroom.
The court reserved its judgment; it can take several months to render a decision.