Warning: Undefined array key "HTTP_REFERER" in /homepages/6/d125890587/htdocs/Client/HuffStrategy/MediaManager/ReadRelease.php on line 34
Supreme Court of Canada to Hear Appeal of Hislop v. Attorney General of Canada - CPP Survivor’s Pensions for Same Sex Partners - Environmental Communication Options/Huff Strategy

Supreme Court of Canada to Hear Appeal of Hislop v. Attorney General of Canada - CPP Survivor’s Pensions for Same Sex Partners

May 16th, 2006 4:52 AM

(Toronto, May 16, 2006) Today, the Supreme Court of Canada will hear two appeals from a landmark ruling of the Ontario Court of Appeal in Hislop et al. v. Attorney General of Canada. The class members are gay men and lesbians whose partners died between April 17, 1985 and January 1, 1998. They are continuing their ongoing battle against the federal government seeking equal CPP survivor pensions. The federal government has continued to deny equal pensions to the class members on the basis of the class members’ sexual orientation. The federal government has appealed the Ontario Court of Appeal’s ruling arguing that no class member is entitled to any CPP survivor pension. The class members are also appealing the Ontario Court of Appeal’s ruling because the Court of Appeal’s decision means that some class members may only receive 1 year of arrears of their pension, when, as in George Hislop’s case, they could be owed as much as 20 years. There are an estimated 1,500 class members across Canada.. The CPP, since its inception in 1966, requires Canadians to contribute regardless of their sexual orientation. However, the class members have been excluded from receiving the full benefit equal to their heterosexual counterparts. The federal government enacted the Modernization of Benefits and Obligations Act in August 2000. However, that legislation served only to forever exclude these class members. That legislation provides for a CPP survivor’s pension to gay men and lesbians, but only if their partners died on or after January 1, 1998. There is no such restriction for heterosexual survivors. The trial judge found that exclusion to be contrary to section 15 of the Charter and guaranteed full and equal pensions to the class members including arrears to one month following the date of death of their partners, as is the case for heterosexual survivors. The federal government appealed that ruling to the Court of Appeal for Ontario. The Court of Appeal agreed that the exclusion was discriminatory, but varied the trial decision in a way, which could limit the arrears of pensions to only 1 year. The Court of Appeal also ruled that any same sex survivors who were deceased were not entitled to any pension at all. The class members, in their appeal to the Supreme Court of Canada, are seeking to restore the decision of the trial judge, which guarantees a full and equal pension to heterosexual survivors. The class members also seek a full and equal pension for the estates of survivors. Douglas Elliott, lawyer for the class members stated that the CPP contributions are not part of the government’s general revenues. He also stated, “It is not disputed by the federal government that if full pensions are paid to our class members, there will be no impact on the CPP fund and, indeed, no increase in CPP contributions required by Canadians.” Albert McNutt, a representative plaintiff stated, “We are continuing our fight for recognition that our relationships with our deceased partners were equal to heterosexual relationships. It is too bad that our federal government is spending taxpayers’ money to continue to deny us our equal pensions. My partner contributed to the CPP just like all other working Canadians. The only reason the government continues to exclude me from receiving a survivor’s pension is because I am gay. That is not right. Today, I am thinking of George Hislop who died before the Supreme Court could hear our appeal. I know he is smiling down on us and wishing our lawyers well.” Christopher Hudspeth, executor of the estate of George Hislop said, “George would have wanted to be here today. He was a fighter and fought for equal rights all his life. He did receive a cheque for part of his survivor pension because of a temporary arrangement with the federal government, but unfortunately, it was too late for him to enjoy it.” - 30 - For more information contact: Don Huff, Environmental Communication Options (ECO) Tel. 416-972-7404 or Cell 416-805-7720 (Additional information on this case may be found at www.reko.ca) CHRONOLOGY OF CASE April 17, 1982 – The Charter came into effect subject to a 3 year delay in the coming into force of section 15, the equality section; this delay was in order that governments could amend their legislation in accordance with the section 15 provisions of the Charter April 17, 1985 – Section 15 of the Charter came into effect April 1986 – George Hislop’s partner of 28 years, Ronald Shearer, died. Mr. Hislop made a telephone inquiry about a CPP survivor’s pension and was told he could not receive one because he was “not a woman” July 14, 1992 – Gail Meredith’s same sex partner of over 15 years, Judy Patterson died. Ms. Meredith telephoned her local CPP office to inquire about a CPP survivor’s pension and was informed that she did not qualify because she and Ms. Patterson were of the same sex. August 1993 – Albert McNutt’s same sex partner, Gary Pask died September 27, 1993 – Eric Brogaard’s same sex partner of 22 years, Orville Germak died. Mr. Brogaard applied for a CPP survivor’s pension and was denied because he was not in an opposite sex relationship. October 19, 1993 – Mr. McNutt applied in writing for a CPP survivor’s pension. His application was denied because he was not in an opposite sex relationship. He did not appeal as he “had no evidence that he was in an opposite sex relationship” May 31, 1999 – Following the release of the Supreme Court of Canada’s decision in M. v. H, the federal government settled three cases (Hodder, Boulais, and Fisk) in which gay men had applied for and were denied a survivor’s pension under the CPP; the Hodder and Boulais cases were about to be heard by the Pension Appeals Board; the Fisk case was to be heard by the Federal Court of Appeal February 2000 – The federal government tabled Bill C-23, the Modernization of Benefits and Obligations Act (“MBOA”); the proposed legislation aimed at amending 68 federal statutes including the CPP to recognize same sex couples; however, the CPP was amended to provide a survivor’s pension only to those gay men and lesbians whose partners died on or after January 1, 1998 and, for them, their pensions would commence only after the legislation came into force July 31, 2000 - The MBOA came into effect 2000 – Eric Brogaard applied for a CPP survivor’s pension following the enactment of MBOA. His application was refused and he appealed the refusal. No hearing of his appeal was held 2000 – Gail Meredith applied for a CPP survivor’s pension after she heard about MBOA. Her application was denied and she appealed the decision. She was advised that she did not qualify because Ms. Patterson died before January 1, 1998 2000 – George Hislop applied for a CPP survivor’s pension following the enactment of MBOA. His application was denied because Mr. Shearer died before January 1, 1998 November 27, 2001 – Hislop et al. v. Attorney General of Canada national class action was launched in Ontario and Brogaard et al. v. Attorney General of Canada was launched in British Columbia; these class actions sought to recover a survivor’s pension for those gay men and lesbians who were excluded by the MBOA on the basis that their equality rights were infringed on the ground of sexual orientation; the MBOA provided CPP survivor pensions to gay and lesbian survivors only if their partners died on or after January 1, 1998; the class members sought a full recovery of the survivor’s pension, including the payment of the arrears of pensions to one month after the date of death of the deceased partner of each class member, which is the same as heterosexual survivors August 2002 - BC Supreme Court certifies Brogaard et al. v. Attorney General of Canada November 2002 - Ontario Superior Court of Justice certified Hislop et al. v. Attorney General of Canada; the Brogaard action joined the Hislop action and both proceeded as one national class action based in Ontario known as Hislop et al. v. Attorney General of Canada September 2003 – The trial of Hislop et al. v. Attorney General of Canada commenced in the Ontario Superior Court of Justice before Justice Ellen Macdonald December 19, 2003 – Justice Ellen Macdonald released the decision in Hislop et al. v. Attorney General of Canada; Her Honour found that the exclusion of class members from a survivor’s pension was an infringement of their section 15 equality rights on the ground of sexual orientation; Her Honour ordered that the class members be granted a full and equal survivor’s pension including arrears to one month after the date of death of the deceased partner of each class member, plus interest January 19, 2004 – The federal government appealed the trial decision of Justice Ellen Macdonald of the Ontario Superior Court decision to Court of Appeal for Ontario June 10 & 11, 2004 – The Court of Appeal for Ontario heard argument in the appeal of the Hislop et al. v. Attorney General of Canada trial decision November 26, 2004 – The Court of Appeal released its decision on the appeal in Hislop et al. v. Attorney General of Canada; the Court agreed with the trial decision that the exclusion of the class members from a survivor’s pension was an infringement of their section 15 Charter rights on the ground of sexual orientation, but disagreed with the trial judge’s decision regarding the arrears of the pension; they left open the possibility that a 1-year limit for arrears might be enforceable and ruled out recovery all-together for any claimants who had died January 25, 2005 – The federal government filed materials seeking leave to appeal the decision of the Court of Appeal for Ontario to the Supreme Court of Canada asking the Court to rule that no class members were entitled to any pensions; the class members also filed materials seeking leave to appeal to the Supreme Court of Canada to restore the trial decision without the 1-year limit and restoring the claims of estates June 23, 2005 – The Supreme Court of Canada granted both applications for leave to appeal October 6, 2005 – The Chief Justice of the Supreme Court ordered 8 constitutional questions to be answered in the appeals. October 8, 2005 – George Hislop died in Toronto at the age of 78 November 2005 – The provincial Attorneys General of Ontario, Québec and Alberta filed materials intervening in the Supreme Court appeals; although the Attorney General of British Columbia also filed materials, his intervention was later withdrawn February 28, 2006 – EGALE Canada Inc. is granted intervener status in the appeals to the Supreme Court of Canada; although the Canadian AIDS Society and the Estate of Ethel Vincent sought leave to intervene, their motions were denied May 16, 2006 – Hearing date for the appeals in Hislop et al. v. Attorney General of Canada before the Supreme Court of Canada, Ottawa, Ontario