Supremes release ‘bittersweet’ Hislop decision

A Supreme Court decision on same-sex survivor benefits means that many of Canada’s gay and lesbian widows can start spending the money in their bank accounts.

When the Canada Pension Plan began paying out benefits to a group of same-sex survivors in 2005, lawyers told them to be careful about how they spent the cash, pending the Mar 1 ruling.

“Lots of them have been putting the money in the bank, because they’ve been afraid to spend it,” says Doug Elliott, a lawyer representing the gay widows.

“If we had lost the appeal, everyone would have had to pay the money back.”

But those cheques are a lot smaller than they could have been. In a unanimous decision, the court ruled Mar 1 that it is unconstitutional to deny cash to gay widows whose partners died after the Canadian Charter Of Rights And Freedoms came into effect, but it stopped short of allowing them to collect the full amount owing.

The decision limits the retroactivity of benefits to one year, citing the “good faith” of the Chretien government in 2000 in extending some benefits to gay and lesbian widows.

Imposing liability on the government for full retroactive payments back to 1985 “absent bad faith [or] unreasonable reliance or conduct that is clearly wrong, would undermine the important balance between the protection of constitutional rights and the need for effective government,” wrote Justices Louis LeBel and Marshall Rothstein on behalf of the unanimous court. It was the first time Rothstein wrote the reasons for a decision since being appointed to the bench by Prime Minister Stephen Harper.

“If they had granted retroactively, it would have encouraged the government to act [to prevent future lawsuits]. But since it didn’t, it doesn’t encourage the government to act, and in fact it encourages them to drag things out and then just say, ‘oh, we didn’t know’,” says Hilary Cook, a lawyer and the vice-president of Egale Canada.

“If you went back to 1985, and you asked anyone whether this was discriminatory, they would have said yes. The only people who didn’t know it was apparently the government.”

Gay and lesbian Canadians have been entitled to collect survivor benefits since 2000, when Parliament passed the Modernization Benefits And Obligations Act (MBOA) which gave gay couples (almost) the same legal standing as straight couples. But the MBOA also set an arbitrary cut-off of Jan 1, 1998 for pensioners; if your partner died after that date, you were entitled to collect, but if he or she died before, you got nothing.

That created what is referred to as the “Hislop class,” referring to those whose partner died between 1985 — when gay people became legally protected by the Charter — and 1998. The case bears the name of George Hislop, one of Canada’s most prominent gay activists, whose partner, Ron Shearer, died in 1986. (Hislop died in October 2005.) This case, the first class-action lawsuit on gay rights to reach the Supreme Court, was about the entitlements of the Hislop class.

Albert McNutt has been sitting on about $3,000 in Canada Pension Plan money. His partner, Gary Pask, died in 1993, entitling him to about $200 a month on top of his disability pension. In the wake of this ruling, McNutt’s payments are secure.

“I hope that my partner Gary is watching, because we loved each other dearly,” said McNutt outside the court. “I’m very, very happy.”

A 2004 Ontario Court Of Appeal ruling partly backed the widow’s position. The federal government appealed it, as did the widows. The widows argued that the court had not gone far enough in compensating those who applied. They asked that they be exempted from a rule that limited a widow’s back payment to one year’s pension benefits. Because they were not eligible under law to file before the year 2000, they argued, they were owed in some cases 15 years of back payments.

Both appeals were dismissed by the Supremes.

“It was never about money, it was about standing up for the cause,” says McNutt. “I’ve never sat down and figured out how much I would get or what I would do with the money.

“But I am disappointed that retroactivity is an issue.”

In limiting the size of the back payments, the Justices weren’t thinking about the current litigants — all of whom had been paying into the Canada Pension Plan throughout their lives, says Cook. The giving back payments from 2000 all the way to 1985 wouldn’t have broken the bank, she says, but a case in farther down the line — in 2015 or even 2030 — would have deeper financial impacts.

“They chose administrative concerns over compassion for people who felt they had been discriminated against — who in fact, the court admits, were discriminated against,” says Cook.

The court also decided that estates of people who have died are not entitled to make challenges under the Charter’s section 15, which covers equality rights. This decision doesn’t affect Hislop’s estate, however, because of a court principle which states that if an individual dies while their appeal is in process, the appeal still stands.

“I’m really sad to think of all the people who passed away throughout this case and the government is not going be respecting the estates,” says McNutt.

Over 400 widows involved in the class-action suit have died while the case proceeded through the courts, says Elliott.