A lawyer representing a national class action suit against the federal government over same-sex pension benefits says he’s “cautiously optimistic” the case won’t go to trial.
“It could settle any time,” says Douglas Elliott, a lawyer with McGowan Elliott And Kim. “There are active discussions ongoing, and we’re going to do our best to avoid a trial if possible.”
The suit, estimated to be worth more than $400-million, was launched in 2001 over the government’s decision to extend Canada Pension Plan benefits only to people whose same-sex partners died since Jan 1, 1998. Elliott says the date was arbitrary and should have been set to Apr 17, 1985, when the Canadian Charter Of Rights And Freedoms came into effect.
The trial is scheduled for three weeks, beginning Mon, Sep 8 in Toronto. A member of the class action suit is anyone whose same-sex common law partner contributed to the Canada Pension Plan and died after Apr 17, 1985 and before Jan 1, 1998.
Elliott, who fought for the legalization of same-sex marriage in Ontario, says the federal government’s change in stance over the marriage issue may suggest “the mood in Ottawa is favourable to gays and lesbians.” (After losing court rulings over same-sex marriage in Ontario, Quebec and British Columbia, the federal government has decided not to appeal. Instead, it drafted legislation legalizing same-sex marriage, which is now before the Supreme Court Of Canada.)
Patrick Charette, a spokesperson for the federal justice department, says he could not comment. “We don’t normally discuss ongoing discussions,” he says, adding that settlements are often options in legal cases.
But he did call the marriage issue and the pension benefits issue “two different matters.”
Elliott estimates the case could affect as many as 10,000 gay and lesbian widows. According to Canadian law, affected parties are automatically included in class action suits unless they opt out. By the time the Jul 31 deadline had passed, only three people had made that decision. Elliott says two of them worked for the Canada Pension Plan itself and he doesn’t know why the third person opted out.
“Frankly, the fact so few opted out will make it easier to settle the case,” he says. “There’s strength in numbers.”
The thousands of people who remained in the suit are bound by the judgment and cannot individually sue the federal government in the future for the same claims.
“I expect that there will be some compromise involved in order to achieve a settlement,” Elliott says, though stating he will stick to his guns on the start date of the class period.
Five gay men and lesbians are named as representative plaintiffs in the suit: George Hislop of Ontario, Brent E Daum of Saskatchewan, Albert McNutt of Nova Scotia, and Eric Brogaard and Gail Meredith of British Columbia.
Hislop, a well-known Toronto activist, is the lead plaintiff. His partner of 28 years, Ronnie Shearer, died in 1986. He estimates the federal government owes him more than $75,000 in CPP benefits.
Quebec is excluded from the class action suit because it has its own pension plan.
* For more information on the class action suit, check out www.mek.ca.
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