Murray v. Canada ( Minister of Health and Welfare )
A-697-93
Linden J.A.
7/5/98
5 pp.
Appeal from Trial Division decision ([1994] 1 F.C. 603) as to whether appellant able to rely on Charter, s. 15 in challenging validity of Canada Pension Plan, s. 53.2(1)-In August 1984, before Charter, s. 15 came into force, claimant applied for equal division of former husband's unadjusted pensionable earnings-Claim denied as 36-month delay elapsed-In January 1991, claimant filed statement of claim in F.C.T.D. seeking declaration s. 53.2 unconstitutional as being contrary to Charter, s. 15 on basis of age, sex, marital status, entitling her to share of former spouse's unadjusted pensionable earnings-Trial Judge deciding any application of Charter retrospective-Charter cannot be applied retrospectively or retroactively-S. 53.2 entitling spouses divorced on or after January 1, 1978 to apply within 36 months for share of pension credits-Parliament chose to confer rights only on those who would be divorced in future-Proclamation into force of amendment held up for nearly 6 months after date of enactment to allow for adjustments in negotiations involving divorce cases in progress, recognizing difficulties caused to those cases if delay not allowed-Delay also indicating characterization herein to be based on event, not on ongoing status of divorced person-Date of divorce, not fact of divorce, most significant here-Otherwise, all divorce settlements completed prior to 1978 might have to be reopened-Conclusion consistent with reasoning of Supreme Court of Canada in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358-To apply Charter herein would be prohibited retrospective application-Appeal dismissed-Canada Pension Plan, R.S.C. 1970, c. C-5, s. 53.2 (as enacted by S.C. 1976-77, c. 36, s. 7)-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15(1).