Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Canadian Charter - Civil - Civil Rights - Equality Rights - Subsection 15(1) of the Canadian Charter of Rights and Freedoms - Whether the Crown is liable to extend legislative benefits retrospectively to 1985 - Whether the limits set out in ss. 44(1.1), 60(2), and 72(1) and 72(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 infringe s. 15(1) of the Charter and if so, whether the breach is demonstrably justified under s. 1 of the Charter - Constitutional remedies in the context of s. 15(1) discrimination as found in a national class proceeding - Whether a constitutional exemption is available - What is the proper analysis to be undertaken of legislative provisions which are not unconstitutional on their face or in their general application but have a discriminatory effect in the operation vis-a-vis a small defined class of claimants when applied in conjunction with unconstitutional legislative provisions - Whether an estate has standing to advance a Charter claim.

In response to M. v. H., [1999] 2 S.C.R. 3, omnibus legislation was enacted, entitled the Modernization of Benefits and Obligations Act, S.C. 2000, c. 12 (“MOBA”), which amended sixty-eight pieces of federal legislation, including amendments to a spouse’s right to a survivor’s pension under the Canada Pension Plan, R.S.C. 1985, c. C-8 (“CPP”). This class action challenges four sections of the CPP, two that specifically apply only to same-sex surviving partners and were enacted in the MOBA (the “specific sections”), and two that apply generally to all CPP claimants (the “general sections”) and were part of the CPP before and after the MOBA. The class action alleges that the denial of survivors’ pensions is unlawful discrimination based on sexual orientation which is a breach of s. 15(1) of the Charter and cannot be saved under s. 1.

The trial judge found that ss. 44(1.1) and 72(2) of the Canada Pension Plan breached s. 15(1) of the Charter, declared them invalid and granted a constitutional exemption under s. 52(1) of the Constitution Act, 1982 from s. 60(2) and s. 72(1). On appeal, the Court of Appeal allowed the appeal in part. Section 60(2) and s. 72(1) were found not to violate s. 15(1) of the Charter so that a constitutional remedy in the form of a constitutional exemption could not be ordered.