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Canadian Supreme Court class action decision awards same-sex CPP survivor pension benefits

Thursday, March 1st 2007 12:13:21pm

Media Release - For Immediate Release

(Ottawa, Ontario, Canada, March 1, 2007) The Supreme Court of Canada released its decision today in Hislop v.Canada.  The case was the first Charter of Rights class action to go to trial in Canada.  It awarded CPP survivor's pensions to 1,500 Canadians from coast to coast.

The Court ruled on three principal issues before it:

1.      Were same sex survivors whose partners died between April 17, 1985 and January 1, 1998 entitled to a CPP survivor's pension?

The Supreme Court upheld the two lower court rulings that found that the denial of pensions was a violation of section 15(1) of the Charter and that the violation was not justified under s. 1.  It confirmed the lower court rulings that some pension benefits must be paid to the class members.

2.      Were these same sex survivors entitled to equal arrears of CPP survivor's pension beginning one month after the date of death of their partners, the same as heterosexual survivors?

The Supreme Court of Canada ruled that class members are eligible to receive their pensions as early as August 1999.  Same-sex survivors who believe they are eligible for the same-sex survivor pension are encouraged to contact class counsel.

3.      Were pensioners who died prior to the Supreme Court's ruling, like George Hislop himself, barred from claiming their pension because of their death?

The Supreme Court of Canada ruled that because estates are not "individuals," meaning natural persons, under section 15(1), that estates do not qualify for these pensions if the survivor died before Oct 2, 2003.  The estates of survivors who died on or after Oct 2, 2003 are encouraged to contact class counsel.

R. Douglas Elliott, of Roy Elliott Kim O'Connor LLP, lead counsel for the class members, said, "We are pleased that the Supreme Court of Canada has ruled in our favour on the fundamental issue of entitlement.  We regret that we were not completely successful in the case but we hope that our clients will take comfort in the Supreme Court of Canada's recognition that they are entitled to a survivor's pension.  I'm also very relieved that George Hislop's estate was included in the ruling."

Christopher Hudspeth, executor of the estate of the late George Hislop, said, "I am encouraged that the Court has seen fit to uphold the basic principle of equality in this case however, I am disappointed that the Court's ruling falls short of true equality. Equality was a goal which my late friend, George Hislop, pursued his entire life."

Albert McNutt, representative plaintiff, said, "Although I am relieved that the Supreme Court of Canada has found that we are entitled to a pension, I am disappointed that the Court found that the government was entitled to pay me less than a full pension.  It is not my fault that the government would not accept my application when I filed it many years ago."

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For further information about the case and the decisions of the lower courts, log on to www.reko.ca.

For more information or to arrange interviews with Mr. Elliott, Mr. McNutt, and/or Mr. Hudspeth, contact Brent Kulba, (ECO media relations), 416-972-7401


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

June 29, 2005 - Bill C-38, federal legislation recognizing same-sex marriage, passes final reading in the House of Commons by a vote of 158-133

October 6, 2005 - The Chief Justice of the Supreme Court ordered 8 constitutional questions to be answered in the appeals.

October 8, 2005 - Representative Plaintiff 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

December 7, 2006 - The Conservative minority government's motion to reopen the same-sex marriage issue is defeated in the House of Commons by a vote of 123-178

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