Gay widowers beat Ottawa, again

Ever since his partner died nearly two decades ago, gay activist George Hislop says he has lived in “genteel poverty.”

He’s rarely gone to restaurants. He hasn’t taken any trips. And the only time he’s gone to the theatre is when a generous friend invited him. His sources of income, an old-age pension, a Canada pension and cheques for sitting on a city committee are just “enough to keep me going,” Hislop says.

But his financial well-being may get healthier soon, as a result of a recent ruling by Ontario’s highest court.

On Nov 26, Ontario’s Court Of Appeal released its judgment on a class-action lawsuit against the federal government over CPP benefits for gay men and lesbians. It upheld a lower court’s ruling that the feds violated equality rights of widowed gay men and lesbians by denying them retro-active pension benefits.

If the federal government accepts the ruling, an estimated $80 million will be paid out to as many as 1,500 eligible queers. It’s been estimated that someone like Hislop could receive as much as $150,000 in back payments, though Hislop himself says he does not know how much he would get.

“Every hustler in town thinks I’m going to get a million dollars,” Hislop says, laughing.

Hislop, whose partner Ronnie Shearer years died in 1986, is waiting for a final verdict from Ottawa before he starts spending. “I’ll believe it when the money is in the bank,” he says.

But he is giving some thought to what he’d like to spend it on: a gay cruise in the Caribbean. The 77-year-old, who’s been in the hospital four times for blood transfusions since the spring, says, “Time is running out for me. I’m getting up there in years.”

“It is a victory,” Douglas Elliott, the lead lawyer for the class-action, said during a news conference. “No one gave us a gay and lesbian discount when we were paying into the Canada Pension Plan, and so we shouldn’t have a gay and lesbian discount when we get paid out of the Canada Pension Plan.”

The class-action lawsuit was launched in 2001, shortly after the federal government extended CPP survivors’ pension benefits to same-sex common law couples. At issue is a date: Jan 1, 1998. Under the revamped pension plan, if a gay or lesbian’s common-law partner died before that date, the survivor is not eligible to collect pension benefits.

Lawyers leading the lawsuit called the date arbitrary and accused the federal government of discriminating against queer couples because the restriction does not apply to opposite-sex couples. They argued benefits should be paid to queer survivors whose partners died since 1985, when the Charter Of Rights And Freedoms came into effect.

Last December, Justice Ellen Macdonald of the Ontario Superior Court ruled in favour of the plaintiffs, but Ottawa appealed. The federal government is studying the new ruling, deciding whether to appeal the case to the Supreme Court Of Canada, says Seumas Gordon, a Justice Department spokesperson. He says the feds have 60 days to appeal.

On one point, the Court Of Appeal did side with Ottawa on not paying retroactive benefits to the estates of about 200 survivors who died since the lawsuit was filed. That was one of the points that led to some confusion the morning the ruling was released; some news organizations erroneously reported that the plaintiffs lost the case.

Elliott says that when he received the judgment he skipped to the back and read only about the aspects his team lost.

“But once I read it through carefully, I realized that in fact we had won all the important points,” he says.

Hislop is one of the five lead plaintiffs in the case. It’s estimated about 1,500 gay men and lesbians across the country are eligible to receive retroactive pension benefits. Queers in Quebec are not part of the lawsuit because the province has its own pension plan.