Case information

Charter of rights — Right to equality (s. 15) — Request for retroactive payment of disabled contributor’s child benefits under s. 74(2) of Canada Pension Plan to beyond 11 months, dismissed — Whether evidence of differential treatment is required when differentiation is apparent on face of statute, i.e. in instances of direct discrimination; and, if so, what evidence is required — When are mirror comparator groups required in order to establish violation of s. 15(1) of Charter in cases of direct discrimination, and when should contextual evidence be treated as defining, as opposed to deepening understanding of legal test being applied for purposes of equality analysis — When the person on whom a legally incapable person is dependent has severe and prolonged disability, should best interests of incapable person be incorporated into Charter claim to protect incapable person — Canadian Charter of Rights and Freedoms, s. 15 — Canada Pension Plan, R.S.C. 1985, c. C-8, s. 74(2).

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This case raises the issue of the limitation of the payment of the disabled contributor’s child benefits (DCCB) under s. 74(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the CPP) to 11 months prior to an application being made for such benefits.

Subsection 74(2) of the CPP provides for the payment of the DCCB for a period of time prior to the application being made. However, s. 74(2) of the CPP limits the retroactive payment of benefits to the 11-month period prior to the application being received.

Due to when she made the application, Ms. Smith did not receive retroactive payment of the DCCB for each of her three children commencing with the month after the month in which that child was born but rather only received retroactive payments for each child for the 11-month period preceding the month in which her application for these benefits was received. This limitation on the retroactive payment of DCCB to the 11 months preceding the application for these benefits is referred to as “the retroactivity cap”.

Ms. Smith appealed to the Social Security Tribunal on the basis that the retroactivity cap infringed the equality rights of her children under s. 15(1) of the Charter.

The General Division of the Social Security Tribunal found that s. 74(2) of the CPP infringed s. 15(1) of the Charter. The Appeal Division found that the General Division made errors of law relating to s. 15(1) of the Charter, allowed the Minister’s appeal and set aside the decision of the General Division. The children of Ms. Smith were only entitled to the retroactive DCCB payment as prescribed by s. 74(2) of the CPP. The Federal Court of Appeal dismissed the applications for judicial review.