Gay couples win partial victory on survivor benefits

By Sue Bailey
OTTAWA (CP) - Gay couples have won a partial Supreme Court victory over pension benefits.
The high court struck down as unconstitutional part of a law limiting survivor benefits to those whose partners died after Jan. 1, 1998. But it ruled against retroactively extending those Canada Pension Plan payments all the way back to 1985 when equality rights took effect under the Charter of Rights and Freedoms. Instead, the 7-0 judgment allows just 12 months of arrears.
The high court essentially said that Ottawa, unless it has acted in bad faith, can't be asked to reach far back in time to legally apply modern-day understanding of rights.
"Achieving an appropriate balance between fairness to individual litigants and respecting the legislative role of Parliament may mean that charter remedies will be directed more toward government action in the future and less toward the correction of past wrongs," says the judgment.
The high court said the federal government breached equality rights when it granted benefits only to survivors whose mates died after Jan. 1, 1998.
However, it said the government had made a "good faith" attempt to update its laws in 2000.
The ruling is a mixed victory for about 1,500 class-action members or their estates. They had fought for compensation dating back to 1985, arguing that they had been unfairly cut out of such benefits up until 2000.
The class-action claimants each stand to receive about $18,000 to $30,000.
For Albert McNutt, 56, it was a bittersweet victory. His partner, Gary Pask, died in 1993. McNutt was denied survivor benefits under CPP at the time because gay couples were excluded.
That changed in 2000 after Parliament was forced to update a raft of laws following a high court ruling the year before that declared it unconstitutional to bar gay couples from collecting family benefits.
"They blatantly discriminated against gays and lesbians over the years," McNutt said.
"I wouldn't say it's totally 100 per cent fair," McNutt, who travelled from Truro, N.S. to be at the Supreme Court, said of Thursday's judgment.
"But I'm happy with taking what we have. This is the last step of the journey for me, anyway. But I would wish for more."
The ruling allows any same-sex partner widowed after 1985 to apply for monthly CPP survivor benefits that average about $500 a month, plus 12-months' arrears.
The case explored the extent to which Ottawa is retroactively liable for wrongs committed as gay rights evolved. The federal government argued that a ruling for the claimants could open a floodgate of similar discrimination claims dating back to when the charter took effect.
At issue was federal legislation passed in 2000 that granted survivor benefits to same-sex partners. But the law restricted payments to those whose mates died after Jan. 1, 1998 - a date class-action claimants say was arbitrarily chosen by Ottawa for no reason other than to dovetail the change with other new statutes.
The high court struck down the cut-off as an unjust violation of equality rights.
Lawyers for the federal government argued the case could set a precedent for a host of other social programs. They were also concerned about the effect on Parliament's power to say when its laws take effect.
Doug Elliott, the lawyer representing the survivor benefit claimants, shrugged off such concerns. Future cases would have to be decided on their merits based on evidence, he said.
Extending survivor benefits to those who lost their partners between 1985 and 1998 would be "a drop in the bucket" for the "gigantic" pension plan, he added.
Total costs of rewarding CPP survivor benefits retroactive to 1985 were estimated by the government's chief actuary at about $100 million, Elliott said.
Thursday's judgment will likely mean a cost of about $50 million, he said.
The late legendary gay rights activist George Hislop launched the class action years ago. The crusade began when he was denied CPP survivor benefits after his partner of 28 years, Ron Shearer, died in 1986. Shearer had paid into the plan for decades.
Hislop didn't live long enough to see the high court rule. He died in October 2005 at 78, still fighting the federal government as it challenged lower-court judgments all the way up to the Supreme Court.

Copyright 2007 Canadian Press
One step closer to treating people as people, regardless of their personal life.
Last edited by eh1eh; Mar 1st, 2007 at 05:55 PM..Reason: sp.
Quote: Originally Posted by eh1ehView Post

One step closer to treating people as people, regardless of their personal life.

Great post eh1!!!

I second that and whole heartedly agree.
Good decision for all citizens.

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