Court awards gays survivor benefits

Ontario Superior Court Justice Ellen Macdonald ruled in a class-action lawsuit in late December that the federal government discriminated against homosexual couples, and ordered it to grant Canada Pension Plan survivor pension benefits retroactively to 1985. The federal government imposed a Jan. 1 1998 cut-off date when it introduced Bill C-23, which granted a variety of rights to homosexual couples in 2000.

Potential recipients will have to prove they lived in conjugal relationships during that time. Interestingly, same-sex twosomes who merely lived together, but did not engage in sexual relations, are excluded.

The province of Quebec was not represented in the suit because it operates a separate pension plan.

As The Interim went to press, the federal government announced it will appeal the ruling.

"I can find nothing generous in codifying a mechanism for discrimination that has been in existence since at least the advent of the Charter," said Macdonald in response to arguments put forth by the Crown that the 1998 deadline was generous, and compatible with the evolving legal status of homosexual relationships.

Macdonald's decision means benefits are now retroactive to April 1985, when equality guarantees were included in the Charter of Rights and Freedoms, and also entitles the plaintiffs to interest on payments retroactive to February 1992, a limitation that also applies to heterosexual couples.

While 400 people have already registered for the class action, Douglas Elliot, lead counsel for the lawsuit, said he believes nearly 1,500 gays and lesbians across Canada are eligible for survivor benefits - which should cost the federal government about $400 million.

Spokesmen for the federal government were quick to criticize the decision for undermining Parliament's right to establish when legislation becomes effective. They were equally quick to argue that it will not bankrupt the CPP or lead to higher CPP premiums.

"It's far too early to be speaking of any decision about our next steps. We're just considering them at this point," said Human Resources Development Canada spokeswoman Ann Mowatt.

Speaking to The Interim, Jason Clemens, an economist with the Vancouver-based, free-market Fraser Institute, largely agreed the decision will not lead to higher premiums or insolvency. The program, he said, "is solvent," thanks to reforms introduced in 1996, although he admitted the Fraser Institute has not researched how much the decision will ultimately cost.

Link Byfield, head of the Edmonton-based Citizens Centre for Freedom and Democracy, told The Interim he was not very surprised by Justice Macdonald's decision in favour of the plaintiffs, but added it seemed unusual she would make it retroactive. "It's very rare to do this," said Byfield. "Why stop (at the beginning of equality guarantees)? Why not go back to the passage of the CPP?"

Byfield said that opponents of gay marriage and the normalization of homosexuality ought to blame their elected representatives more than judges or the Charter.

"I think it's an example of how Parliament has given power to the courts any time it wants," said Byfield, adding that rule by judicial fiat is possible only because members of Parliament "choose to duck" such issues.

Asked why feminist and homosexual activists have been so successful in the courts, Byfield replied that left-wing activist groups have received millions of dollars from the government for legal challenges, and that many in Canada's governing elite "have a somewhat different moral rationale than most voters - it certainly isn't based on any kind of democratic consensus."