Canada (Attorney General) v. Hislop

Canada (Attorney General) v. Hislop

Sections 44(1.1) and 72(2) of the Canada Pension Plan discriminate against same-sex survivors contrary to s.15(1) of the Charter and are not justified under s.1; estates generally lack standing to advance s.15(1) claims except where the claimant obtained judgment or argument concluded before death so the appeal survives; broad retroactive relief beyond the remedial transitional arrears is not available because of jurisprudential context, reasonable reliance and respect for legislative allocation of public resources; appropriate remedy is to strike down ss.44(1.1) and 72(2) nunc (no suspension), entitling affected class members to survivor benefits subject to the existing 12-month arrears...

Citation
2007 SCC 10
Parties
Appellant/respondent on Cross Appeal: Attorney General of Canada; Respondents/appellants on Cross Appeal: George Hislop; Brent E. Daum; Albert McNutt; Eric Brogaard; Gail Meredith; Intervener: Attorney General of Ontario; Intervener: Attorney General of Quebec; Intervener: Attorney General of Alberta; Intervener: Egale Canada Inc.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 March 2007
Procedural Posture
Charter S.15 Equality Challenge to Canada Pension Plan Amendments / Appeal to Supreme Court of Canada From Ontario Court of Appeal (file No. 30755)
Outcome
Appeal and cross-appeal dismissed
Legal Topics
Equality Rights, Sexual Orientation, Retroactivity of Remedies, Canada Pension Plan, Survivor Pension Entitlement
Source Language
English
Constitutional Law Administrative Law Public Law Remedies Equality Rights Sexual Orientation Retroactivity of Remedies Canada Pension Plan +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 6 Authorities cited 20 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Attorney General of Canada

Appellant/respondent on Cross Appeal

George Hislop; Brent E. Daum; Albert McNutt; Eric Brogaard; Gail Meredith

Respondents/appellants on Cross Appeal

Attorney General of Ontario

Intervener

Attorney General of Quebec

Intervener

Attorney General of Alberta

Intervener

Egale Canada Inc.

Intervener

Procedural Posture

Charter S.15 Equality Challenge to Canada Pension Plan Amendments / Appeal to Supreme Court of Canada From Ontario Court of Appeal (file No. 30755)

Legal Issues

  1. 1 Whether s.44(1.1) of the Canada Pension Plan infringes s.15(1) of the Charter
  2. 2 If so, whether that infringement is justified under s.1
  3. 3 Whether s.72(2) of the Canada Pension Plan infringes s.15(1)

Ratio Decidendi

Sections 44(1.1) and 72(2) of the Canada Pension Plan discriminate against same-sex survivors contrary to s.15(1) of the Charter and are not justified under s.1; estates generally lack standing to advance s.15(1) claims except where the claimant obtained judgment or argument concluded before death so the appeal survives; broad retroactive relief beyond the remedial transitional arrears is not available because of jurisprudential context, reasonable reliance and respect for legislative allocation of public resources; appropriate remedy is to strike down ss.44(1.1) and 72(2) nunc (no suspension), entitling affected class members to survivor benefits subject to the existing 12-month arrears...

Court Disposition

Appeal and cross-appeal dismissed

Orders

  • Sections 44(1.1) and 72(2) of the Canada Pension Plan declared of no force and effect
  • No suspension of the declarations of invalidity; declarations effective immediately