[1994] 3 F.C. 662
T-2233-89
Alexander Ernest Sutherland and Sharon Gay Sutherland (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada (Defendant)
T-123-91
Gunda Mary King (Plaintiff)
v.
Her Majesty the Queen (Defendant)
Indexed as: Sutherland v. Canada (T.D.)
Trial Division, McKeown J.—Ottawa, March 21; Toronto, May 26, 1994.
Constitutional law — Charter of Rights — Equality rights — Canadian Forces Superannuation Act, s. 31(1), Defence Services Pension Continuation Act, s. 26(d),(e) denying survivor pension benefits to spouses marrying pensioner after latter reaching age 60 or retired — Charter, s. 15 not violated — No discrimination based on age, sex — S. 15 concerned only with personal characteristics — Legislation’s objective cost containment — Distinction based not on personal characteristic, but on pensioner’s employment status if and when marrying after 60 — Age 60 used as deemed retirement age to determine employment status, consequential pension rights — Comparative analysis impossible because groups to be compared consisting solely of women i.e. those most likely to benefit by removal of limitation on liability for spousal survival benefits, or those most likely to suffer burden imposed by limitations — Plaintiffs failing to show group of women affected by limitations generally disadvantaged, link between distinctions in treatment and disadvantage suffered — Distinction between women marrying pensioners before pensioners 60 and women marrying pensioners after 60, not based on sex — No evidence establishing inequality between “older” group of women who marry post-retirement men and “younger” group of women who marry pre-retirement men.
Pensions — Canadian Forces Superannuation Act, s. 31(1), Defence Services Pension Continuation Act, s. 26(d),(e) denying pension benefits to spouse marrying pensioner after reaching age 60 or after pensioner retired — No discrimination based on age, sex — Objective of age restrictions cost containment — Distinction based on pensioner’s employment status if and when marrying after 60 — Age 60 used to deem retirement age to determine employment status, consequential pension rights.
Armed forces — Canadian Forces Superannuation Act, s. 31(1), Defence Services Pension Continuation Act, s. 26(d),(e) denying survivor pension benefits to spouses marrying pensioner after latter reaching age 60 or after pensioner retired — No discrimination based on age, sex — Age restrictions imposed to contain costs — Distinction based on pensioner’s employment status if and when marrying after 60 — Age 60 used to deem retirement age, consequential pension benefits.
These were actions for declarations that Canadian Forces Superannuation Act, subsection 31(1), and Defence Services Pension Continuation Act, paragraphs 26(d) and (e) were contrary to Charter, section 15. Canadian Forces Superannuation Act, subsection 31(1) denied survivor pension benefits to spouses who married a pensioner after the latter had reached the age of 60, unless the pensioner became or continued to be a contributor to the pension fund. Mrs. Sutherland married Mr. Sutherland in 1983 when he was 63 and was receiving pension benefits under the CFSA. Therefore if she survives her husband she would not be entitled to receive a survivor benefit. Defence Services Pension Continuation Act, paragraphs 26(d) and (e) denies survivor pension benefits to spouses who married a pensioner after the latter reached the age of 60 or had retired. Mrs. King married Mr. King in 1970 when he was 65 and in receipt of a pension under the DSPCA. Following Mr. King’s death in 1990 Mrs. King applied for survivor benefit under the DSPCA. Her application was denied on the basis of paragraphs 26(d) and (e) because at the time of her marriage he was both retired from the Canadian Forces and over 60 years of age. The plaintiffs claimed that the exclusionary clauses were discriminatory on the basis of age and sex. The defendant submitted that the distinctions were based on the employment status of the pensioner when he married, which is not a personal characteristic. The Crown also argued that where the age of 60 is used in the CFSA and the DSPCA as a cutoff date, it is used as a putative or surrogate retirement date. The issue was whether the impugned sections violated Charter, section 15.
Held, the actions should be dismissed.
An analysis pursuant to Charter, section 15 is essentially a comparative analysis. Only those distinctions which are discriminatory will engage Charter, section 15, which in turn is concerned only with relevant personal characteristics. The restrictions on survivor’s benefits were based on the need to contain costs and the necessity for a pension plan to fix the plan’s liability as of a certain date. The distinction herein was not based on a personal characteristic. It was based on the employment status of the pensioner if and when he married after reaching age 60. It turned on the employment status of the individual before and after retirement, or before and after the individual commenced to receive pension payments. Age 60 was not used as a personal characteristic, but as a deemed retirement age to determine the individual’s employment status and consequential pension rights based on that status. Age 60 referred to a job-related characteristic, i.e. employment status. Employment status is not a personal characteristic, and therefore not covered by Charter, section 15.
In determining adverse effect discrimination, it must first be determined whether the section creates an adverse effect upon women in comparison with men. Next it must be determined whether a distinction has been found based upon the personal characteristic of sex. The claimant would have to establish that the distinction had “the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to the opportunities, benefits and advantages available to others.” On the first question the plaintiff argued that most spouses who marry pensioners who are older than 60, or who are younger than 60 but nonetheless retired, are women. Therefore, women would be most likely to benefit by the removal of the limitation on eligibility for spousal survival benefits, or, conversely would be most likely to suffer the burden imposed by the limitations. However, both those who do receive the benefit and those who do not are women. The comparative analysis could not be made because the groups to be compared consisted solely of women. The statutory limitations herein did not contribute to the economic situation of elderly unattached women, which exists independently of the impugned sections of the legislation. No evidence was led as to the economic situation of the group of women affected by the limitations. It was not enough to point to distinctions in the way groups are treated. The plaintiff failed to show that that group is generally disadvantaged, and that there was a link between the distinctions in treatment and the disadvantage suffered by the group. As to the second question, the alleged discrimination between the group of women who marry pensioners after the pensioners have turned 60, and the group of women who marry pensioners before the pensioners have turned 60, was not based on sex. The burden or benefit could not fall upon both sexes. It was not sufficient to say that women are most often “affected” by the section.
There was no discrimination based on age. The “age 60” limitation found in the legislation was a deemed retirement age to determine employment status. It was not a personal characteristic of the male pensioners and therefore not a ground for a finding of discrimination on the basis of age. If the age distinction was between an “older” group of women who marry post-retirement men, and a “younger” group of women who marry pre-retirement men, there was no evidence establishing inequality. Therefore it was not necessary to determine the personal characteristics which were alleged to form the basis for discrimination.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to amend certain Acts in relation to pensions and to enact the Special Retirement Arrangements Act and the Pension Benefits Division Act, S.C. 1992, c. 46, ss. 42, 44.
An Act to amend the Militia Pension Act, S.C. 1946, c. 59.
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], ss. 1, 15.
Canadian Forces Superannuation Act, S.C. 1959, c. 21.
Canadian Forces Superannuation Act, R.S.C., 1985, c. C-17, ss. 2(1), 31(1).
Civil Service Superannuation Act, 1924 (The), S.C. 1924, c. 69.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.
Defence Services Pension Act (The), S.C. 1950, c. 32.
Defence Services Pension Continuation Act, R.S.C. 1970, c. D-3, ss. 25 (as am. by S.C. 1974-75-76, c. 81, s. 50), 26(d),(e).
Militia Pension Act, 1901 (The), S.C. 1901, c. 17, ss. 18, 22.
Militia Pension Act, R.S.C. 1927, c. 133.
Ontario Municipal Employees Retirement System Act, R.S.O. 1990, c. O.29.
Pension Act, R.S.C., 1985, c. P-6.
Public Service Superannuation Act, R.S.C., 1985, c. P-36.
CASES JUDICIALLY CONSIDERED
APPLIED:
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Symes v. Canada, [1993] 4 S.C.R. 695; (1993), 110 D.L.R. (4th) 470; 161 N.R. 243; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81.
REFERRED TO:
Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; (1989), 59 D.L.R. (4th) 321; [1989] 4 W.W.R. 193; 58 Man. R. (2d) 161; 26 C.C.E.L. 1; 10 C.H.R.R. D/6183; 89 CLLC 17,012; 45 C.R.R. 115; 94 N.R. 373.
ACTIONS for declarations that Canadian Forces Superannuation Act, subsection 31(1), and Defence Services Pension Continuation Act, paragraphs 26(d) and (e) were contrary to Charter, section 15. Actions dismissed.
COUNSEL:
J. J. Mark Edwards and E. Ainslie Benedict for plaintiffs.
Barbara A. McIsaac, Q.C. and Frederick Woyiwada for defendant.
SOLICITORS:
Nelligan/Power, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
McKeown J.: The two actions were brought separately against the Crown as challenges under the 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]] (the Charter), to provisions of various superannuation and pension acts. The first action, brought by Alexander Ernest Sutherland (Mr. Sutherland) and Sharon Gay Sutherland (Mrs. Sutherland), concerned subsection 31(1) of the Canadian Forces Superannuation Act, R.S.C., 1985, c. C-17 as amended (CFSA). This subsection denied survivor pension benefits to spouses who married the pensioner after the pensioner reached the age of 60, unless the pensioner continued to be a contributor to the pension fund. The second action, brought by Gunda Mary King (Mrs. King), concerned paragraphs 26(d) and (e) of the Defence Services Pension Continuation Act, R.S.C. 1970, c. D-3 (DSPCA). These paragraphs denied survivor pension benefits to spouses who married the pensioner after the pensioner reached the age of 60 or after the pensioner retired. Because of the similar issues and fact situations, the actions were joined on consent by order of Jacques Lefebvre, Senior Prothonotary, dated February 25, 1992.
The plaintiffs submit that these exclusionary clauses are discriminatory on the grounds of age and sex. The constitutional question to be determined is whether the impugned sections violate section 15 of the Charter. If it is so found, the next question to be determined would be whether the Crown has demonstrated that the limitations in the statutes are demonstrably justified in a free and democratic society, and thus saved by section 1 of the Charter.
There are two issues with respect to remedy. The first is whether the plaintiffs are entitled to a declaration that the said sections are inconsistent with section 15 of the Charter, and are therefore of no force or effect pursuant to section 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., Appendix II, No. 44]]. The second remedy issue concerns Mrs. King’s claim only, and is: if the Charter challenge is successful, is Mrs. King entitled to a widow’s pension as defined by the DSPCA and if so, did the entitlement arise at the date of her husband’s death, or does it arise at the date of this decision?
Following are the pertinent sections of the Charter, and section 52 of the Constitution Act, 1982:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
…
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
…
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
…
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
FACTS
The parties submitted a statement of agreed facts, which I will summarize. Mr. Sutherland was born in 1920. He served in the Canadian Forces from 1941 to 1946, and again from 1949 to 1970, at which time he was honourably released with the rank of Major. During the time of his service in the Forces, Mr. Sutherland was a “contributor” within the meaning of subsection 2(1) of the CFSA. Since his release he has been entitled to receive, and has received, pension benefits under the CFSA. He currently receives about $24,485 annually. After leaving the Forces, Mr. Sutherland took a position with the Canadian Public Service. He is now retired, and receives an annual pension in an amount of $12,333 under the Public Service Superannuation Act, R.S.C., 1985, c. P-36, as amended (the PSSA). He also receives income in the form of Old Age Security and Canada Pension Plan payments.
Mrs. Sutherland was born in 1940, and married Mr. Sutherland in 1983, when she was 43 and Mr. Sutherland was 63. Both had been previously married and divorced. He has no binding financial obligation under the divorce decree to his ex-wife, but he assumed total responsibility for the children of the marriage. Mr. Sutherland had not yet retired from the Public Service at the time of the marriage. Since her marriage to Mr. Sutherland, Mrs. Sutherland has worked as a temporary casual employee. She pays Unemployment Insurance and Canada Pension Plan premiums. On April 1, 1992, she became entitled to join her present employer’s pension plan. By virtue of the contributions being made by Mr. Sutherland to the Public Service Superannuation Plan at the time of their marriage, should Mrs. Sutherland survive her husband, she would be entitled to receive a survivor benefit under the PSSA. This benefit would be an annual payment for life of an amount equal to 50% of the annual benefit payable to Mr. Sutherland just prior to his death. By virtue of subsection 31(1) of the CFSA, should Mrs. Sutherland survive her husband, she would not be entitled to receive a survivor benefit under the CFSA because at the time of their marriage, Mr. Sutherland was over 60 years of age. The pertinent subsection of the CFSA reads:
31. (1) Notwithstanding anything in this Act, the surviving spouse of a person is not entitled to any annual allowance under this Act if that person was over sixty years of age at the time of his marriage, unless, after that time, that person became or continued to be a contributor.
The late Mr. King, husband to the plaintiff in the second action, was born in 1904. He served in the Canadian Forces from 1923 to 1948, at which time he was released with the rank of Lieutenant-Colonel. After his release, he joined the British Columbia Public Service, where he remained employed until his retirement in about 1968. By virtue of his service in the Canadian Forces, Mr. King was entitled to receive, and did receive, a pension under the DSPCA from the time of his release from the Forces until his death in 1990. Just prior to his death, Mr. King was receiving income from four sources: the Canadian Forces pension in the approximate amount of $1,278 monthly; a British Columbia Government pension in the approximate amount of $900 monthly; Canadian Pension Plan benefits in the approximate amount of $138 monthly; and Old Age Security benefits.
The plaintiff Mrs. King was born in 1922. She married Mr. King in 1970 when she was 48 and Mr. King was 65, and remained married to him until his death in 1990. Both had been previously married; Mrs. King’s first marriage ended in divorce in 1967 after 27 years of marriage, and Mr. King’s first marriage ended with the death of his wife in 1965.
From 1972 until shortly after Mr. King’s death, Mrs. King was employed on a part-time basis as a bookkeeper, earning at the time of her retirement about $500 to $600 monthly. She was unable to work full-time because she had to attend to the medical and personal needs of Mr. King, who was diagnosed with Parkinson’s disease approximately two years after their marriage. She was the sole beneficiary of his estate which was limited to:
(a) death benefits of about $2,500 from a life insurance policy, $2,400 from the Canada Pension Plan, and $500 from the British Columbia Government Pension Plan; and
(b) an unencumbered condominium which she had jointly owned with Mr. King at his death.
She received no survivor benefit under Mr. King’s British Columbia Government Pension Plan, other than the death benefit referred to above. She understands that, after their marriage, her husband raised the question of a survivor’s benefit with the B.C. Superannuation Branch. She gathers that no benefit was payable because Mr. King was not married at the time his pension was calculated.
Her current sources of income are Old Age Security benefits in the amount of $385 per month, a survivor benefit and pension under the Canada Pension Plan in the total amount of $525 per month, payments from a Registered Retirement Income Fund in the total amount of $856 per month, and interest payments in relation to her investments in Guaranteed Investment Certificates in the approximate amount of $200 per month. Following her husband’s death Mrs. King made application for survivor benefit under the DSPCA. Her application was denied on the basis of paragraphs 26(d) and (e) of the DSPCA because at the time of her marriage to Mr. King he was both retired from the Canadian Forces and over 60 years of age. It is the Crown’s position that either circumstance is a bar to any entitlement Mrs. King may otherwise have had to a survivor benefit. The pertinent sections of the DSPCA read:
25. [as am. by S.C. 1974-75-76, c. 81, s. 50] Subject to the provisions hereinafter contained, the Minister may, as to him seems fit, grant a pension to the widow and a compassionate allowance to each of the children of any officer who, at the time of his death being on full pay, dies after a period at which a pension might be granted him, or who was, at the time of his death, in receipt of his pension.
26. Such pension or compassionate allowance shall not be granted
…
(d) if the officer married after retirement; [or]
(e) if the officer was at the time of his marriage over sixty years of age;
LEGISLATIVE HISTORY
The provisions in the CFSA and the DSPCA which deny survivor benefits to spouses of members who marry after the age of 60 can be traced back to The Militia Pension Act, 1901, S.C. 1901, c. 17. Prior to 1901, pensions were granted by Royal Warrant.
The granting of a widow’s pension under The Militia Pension Act, 1901 was discretionary. Pursuant to section 18 of the Act, a pension was not to be granted if the applicant was, in the opinion of the Minister, unworthy of it or already wealthy. No pension was available to a widow of an officer who was more than 25 years younger than her husband and no pension would be granted if the officer had married after his retirement or if he was over 60 years of age at the time of the marriage. Pursuant to section 22, a widow’s pension was subject to discontinuance in the event she became either unworthy of it or wealthy. Her pension would be suspended on remarriage, but would be restored to her in the event that she once again became a widow.
Surviving widows’ benefits were provided for the first time to public servants under the The Civil Service Superannuation Act, 1924 [S.C. 1924, c. 69]. These survivor benefits were subject to a grant by the Governor in Council. They were also subject to the requirements that the proposed recipient both be and remain worthy and not remarry. Marriages where the husband had retired or was over 60 did not qualify. The benefit was subject to an actuarial reduction where the age of the pensioner exceeded that of the wife by 20 years or more.
In 1946, pursuant to An Act to amend the Militia Pension Act, S.C. 1946, c. 59, the Militia Pension Act [R.S.C. 1927, c. 133] was amended by the addition of Part V, which covered those who joined the Forces after March 31, 1946 and those who were members of the Forces on that date and elected to become contributors. Part V applied to enlisted personnel, as well as to officers.
Under Part V, widows were disentitled to an allowance if, inter alia, the contributor was over 60 years of age at the time the marriage took place, but there was no restriction based on marriage after the member’s retirement. Widows of members not covered by Part V were still subject to the dual restrictions denying survivor benefits if the marriage took place after retirement or after the member had reached the age of 60. In 1950, the title of the Act was changed from the Militia Pension Act to The Defence Services Pension Act, S.C. 1950, c. 32 (DSPA).
The Canadian Forces Superannuation Act was enacted in 1959 [S.C. 1959, c. 21], and took effect the following year. The Act governed the pension entitlement of all persons serving in the Canadian Forces and all individuals covered by Part V of The Defence Services Pension Act, whether in receipt of a pension or deceased. Under the CFSA, widows became entitled to an allowance as of right, if otherwise eligible. Subsection 31(1) of the Act carried forward the provision in Part V of the DSPA disentitling a widow to an allowance if her husband was over 60 years of age at the date of their marriage. The Act did not disentitle a widow on the basis of a post-retirement marriage. In the result, if a retiree under the CFSA marries prior to age 60 the spouse of that retiree is eligible to receive survivor benefits. The CFSA was amended by [An Act to amend certain Acts in relation to pensions and to enact the Special Retirement Arrangements Act and the Pension Benefits Division Act] S.C. 1992, c. 46 sections 42 and 44, to allow a pensioner whose spouse is not eligible to receive survivor benefits, to elect to reduce the amount of his or her pension in order to allow the spouse to receive an immediate annual allowance. As stated earlier, Mr. Sutherland comes within the CFSA.
The balance of the DSPA, being Parts I through IV, was renamed the Defence Services Pension Continuation Act (the DSPCA). Paragraphs 26(d) and (e) continue, in identical terms, the provisions respecting post-retirement marriages and marriage after the age of 60, which paragraphs were themselves identical to paragraphs 18(d) and (e) of The Militia Pension Act, 1901. As stated earlier Mrs. King’s claim is based on the Defence Services Pension Continuation Act.
EXPERT EVIDENCE
The plaintiffs alleged that the purpose of excluding widows of post-retirement and post-age-60 marriages from entitlement to widow’s benefits was not to limit costs in a general sense but rather to protect the scheme established by The Militia Pension Act, 1901 from “gold diggers” and death-bed marriages. The plaintiffs produced an expert witness, Dr. Margaret McCallum, to support this interpretation. The defendant objected to her evidence being admitted as it was alleged not to be relevant. I admit her evidence but attach little weight to it. She began by identifying “a long-standing assumption by both legislators and federal public sector pension administrators that some women were prepared to marry solely in order to qualify for a survivor’s benefit” as the basis for the exclusion of surviving spouses of post-age 60 marriages under the CFSA. She went on to say:
The existence of this underlying assumption and the respect accorded to it are documented in discussions of pension plan design implementation since at least the First World War.
However, in my view, the few references to the rationale for the limitation, cited by Dr. McCallum, were not made by people in authority. There was no ministerial statement supporting the alleged “underlying assumption” offered as evidence by the witness. Furthermore, the statements that were introduced refer only to “some women.” There was no allegation that all or even a majority of women were prepared to marry solely in order to qualify for survivor’s benefits. Both Dr. McCallum and Ms. Hamilton, an expert in federal pensions, noted the absence of any documentation which could explain the purpose of the exclusionary provisions in The Militia Pension Act, 1901, the DSPA, the DSPCA or the CFSA. Dr. McCallum suggested that the documentary evidence was to be found in the record of the Pension Act [R.S.C., 1985, c. P-6] because it provided benefits to returning veterans, was the largest social welfare expenditure in the country at that time, and required both policy-making and investigation. However, neither the DSPCA nor the CFSA are social welfare expenditure programs. The latter two Acts provide for pensions as part of the total compensation to persons who elect to serve their country in the Armed Forces. As Dr. McCallum admitted, the Pension Act was not concerned in any way with retirement or retirement planning. It was not funded by contributions and did not require a matching of income and liabilities in the way required by the CFSA and the PSSA.
Dr. McCallum’s report alleged that:
… there was considerable fear that the opportunity for life-long widowhood on a pension would induce hordes of young women to marry ill or elderly veterans on their death beds … [and that] politicians and pension administrators reiterated as a starting assumption that the country had to be protected from scheming women.
On cross-examination, she admitted that the sentences used in her report, in which she refers to “hordes of young women” and the need for the country to be “protected from scheming women,” were her own and cannot be found in any of the records she cited. Mr. Cohen, the actuarial expert for the defendant, stated in cross-examination that there were some instances of “young women marrying sick old men for money.” He did not agree with plaintiffs’ counsel that an essential premise of the limitations with respect to both post-retirement and post-age-60 marriages was that “young women marry sick old men for money.” Both Dr. McCallum and Mr. Cohen had a tendency to exaggerate in their reports but Mr. Cohen was more prepared to agree that he had overstated the case than Dr. McCallum.
I found the evidence of Ms. Hamilton, an expert produced by the defendant, to be trustworthy and helpful; she was qualified as an expert in the development, content and administration of federal government public service pension plans, both historically and currently. She noted that in designing its pension plans, the federal government must try to ensure that plan benefits are reasonable in terms of their cost to employees and to the Government as employer, particularly since the Government’s share of the cost is paid by Canadian taxpayers. She stressed the importance of accounting and actuarial principles in the design and administration of the plans, particularly given the statutory requirement that the Government ensure that each plan superannuation account has a sufficient balance, as calculated each month, to fund all future liabilities.
Ms. Hamilton further noted that survivor benefits represent a significant cost to the plans, and that it has always been recognized that limitations had to be placed on them. She noted the long-standing acceptance of the principle that a plan’s liability for survivor benefits be limited to survivors existing at the time the employee’s service ended. She also noted how this principle had been modified in relation to military personnel since they retired at comparatively young ages. By introducing the arbitrary age of 60 as an equivalent to retirement age, the Government was seeking to provide comparable survivor benefits to spouses of military personnel. Evidence was produced to show that the Canada Pension Plan and the Ontario Municipal Employees Retirement System Act [R.S.O. 1990, c. O.29] do not distinguish between pre- and post-retirement marriages nor do they have any restrictions on age of marriage for participants in the plan. All other major provincial and private plans and the general pension statutes define spouse at the time of retirement. I accept that “age 60,” when used in the CFSA and the DSPCA, is simply a surrogate for the age of retirement.
Plaintiffs’ counsel sought to distinguish plans which limit survivor benefits to survivors existing at the time the employee’s service ended on the basis that they all provided a certain sum of money which could be taken either by the pensioner or by the pensioner and the survivor, whereas the plans under attack provide a survivor’s benefit as an “add on” benefit. I agree that the plans are different in this respect. However, the plans also use the time of retirement to determine the amount of the benefit payable to the retiree. There is a fixed amount payable from an actuarial standpoint which, like all actuarial figures, needs to be revised from time to time. In the case of the federal government plans the actuarial assumptions are examined every three years and revised in accordance with the state of affairs at that time. In the case of the CFSA and the DSPCA, the amount of federal government liability is fixed at the age of retirement, or the age of 60, which, as I stated above, is used as a surrogate for retirement. Recent amendments to the legislation, pursuant to S.C. 1992, c. 46, sections 42 and 44, which came into effect during the hearing of this case, empower a veteran to elect to have his pension made joint and several with his spouse on an actuarial basis. This again does not change the amount payable by the Government after the age of retirement but just changes the amount payable to the various beneficiaries. If the Government were required to pay 50% of the amount received by a pensioner at his death, or any other amount, to a spouse married to the pensioner after the pensioner’s retirement, it would not be possible to fix the exact amount of liability incurred by the Government upon the pensioner’s retirement. Mr. Cohen, the actuary, admitted that an approximate cost could be worked out but that because of the anti-selection problem it would be difficult to be accurate. In any event, there would be an additional cost if spouses acquired after retirement were included as beneficiaries.
Mr. Cohen related the American experience with respect to Civil War pensions whereby pensions continued to be paid up until the time of the Second World War. He pointed out that Public Service pension plans are for the most part “defined benefit” plans. In these types of plans, it is essential to minimize uncertainties in valuations. Discrepancies which occur in any one valuation generally balance out over the long run. However, it is important to minimize those uncertainties caused by making the plan more generous, as a more generous plan can only increase costs. He estimated that the additional cost would be .23 of 1% of the annual cost but that it would require an additional contribution of between $12.1 million and $108 million. This would be in addition to the amortization over 15 years of new liabilities of between $362 million and $3.87 billion. He admitted that the high end would never be reached because it required that every married pensioner remain married for the rest of his or her life, and would require instant marriages if a spouse should die. Only 11% of pensioners are unmarried at the age of 60, and even if they all married after the age of 60, these numbers would not have a significant impact compared to the numbers of pensioners who die leaving spouses eligible for benefits. The plaintiff did not produce any alternative numbers. It is important to remember that, although the increase in cost to the plans, in terms of percentage, would be small, it represents an expansion of the fund’s area of liability, whereas discrepancies between actuarial estimates and actual costs to the fund are simply the result of errors in the actuarial forecasts, and do not represent an expansion of the fund’s area of liability.
Mr. Cohen also stressed that the expansion of an eligibility category of a pension plan may actually encourage the occurrence of a type of behaviour, making actuarial estimates based on current statistics unreliable. He referred to this phenomenon as “anti-selection” or “selection against the plan.” He acknowledged that there were no studies which show that providing survivor benefits to a spouse acquired after retirement produced an anti-selection effect. However, he further noted that no such studies have been done because so few plans provided such benefits. He did note that it was generally accepted amongst actuaries that any pension plan feature which rewards anti-selection behaviour will have some anti-selection effect and I accept his evidence in that respect notwithstanding that there are no documentary studies on this point. Mr. Cohen is an actuary and if the consensus amongst actuaries was otherwise it was open to the plaintiffs to call actuarial evidence to that effect. I draw a negative inference from their failure to do so. Thus it can be expected that there would be an increase of post-age-60 pensioners marrying younger people if a survivor’s pension were made available to them. At the date of this trial, 99% of the pensioners were men, but the active force is presently only 90% male. Selection against the plan will occur whether the pensioners are men or women.
The plaintiff also introduced evidence through an expert witness, Ms. Townson, who was qualified as an expert in the current economic situation of women in Canada, with particular focus on the elderly. She stated that the majority of unattached elderly women in Canada have incomes below the poverty level, and that a major reason for this is that they have been full-time homemakers dependent on their husbands for financial support. She also stated that elderly unattached women are more likely to be poor than elderly unattached men. However, she admitted that she was not aware of any studies showing the economic situation of widows of military personnel or of widows who had married after their spouses’ retirement. Furthermore, there was no evidence of the average age of the spouse at the time of his or her marriage to a pensioner over the age of 60, although there was evidence which showed generally that the gap between the age of women and the men they married widened for each year that the male was over 60 at the date of marriage. Ms. Townson was also unable to identify among the unattached women referred to in her study, the number or relative portions of widows, divorced women and women who had never married, but that such statistics were available. She also noted that less than half of all employees in Canada are covered by pension plans. It is up to the plaintiffs to prove their case and they have not shown the economic situation of the widows of military personnel or of the widows who had married after their spouses’ retirement. In any event the CFSA and to a lesser extent the DSPCA are not part of the social welfare program of Canada. If there is a problem concerning the income levels of unattached elderly women it should be addressed in the relevant legislation and not in pension plan legislation which is part of an employee’s compensation. In the case of Mrs. King, her present income is in excess of the average income for elderly unattached women as presented by Ms. Townson.
In summary, I am satisfied that the objective of the limitations on survivor’s benefits, contained in the legislation and at issue here, was cost containment in a general sense. As Mr. Cohen stated, in designing pension plans the objective of meeting employees’ needs is constrained by the necessity of containing costs within an acceptable range, minimizing administrative complexities and of avoiding features of the plan that might allow members to take undue advantage of the plan. This does not mean that the purpose of the over-age-60 restriction on marriages is to protect the plans from “gold diggers.” It is a secondary objective to the main objective and it is not based on any stereotypical view about female behaviour. Concern about isolated instances of “gold-digger marriages” does not amount to presumptions of female behaviour in general.
CONCLUSIONS
The first issue to be decided is whether any of the subsections in the legislation in question violate section 15 of the Charter. An analysis pursuant to section 15 of the Charter is essentially a comparative analysis. However, it is clear that the comparative analysis does not extend to eliminating all distinctions. Only those distinctions which are discriminatory will engage provisions of section 15 of the Charter. The plaintiff claims that the provisions in question are discriminatory on the basis of age or sex. The defendant submits that the distinctions are based on the employment status of the pensioner when he gets married, which is not a personal characteristic. The defendant also argues that where the age 60 is used in the CFSA and the DSPCA as a cutoff date, it is used as a putative or surrogate retirement date.
The tests for determining what is discrimination are set out in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 and Symes v. Canada, [1993] 4 S.C.R. 695. In Andrews, supra, at pages 163-164 McIntyre J. discusses the concept of equality and states:
Section 15(1) of the Charter provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. This is not a general guarantee of equality; it does not provide for equality between individuals or groups within society in a general or abstract sense, nor does it impose on individuals or groups an obligation to accord equal treatment to others. It is concerned with the application of the law. No problem regarding the scope of the word “law”, as employed in s. 15(1), can arise in this case because it is an Act of the Legislature which is under attack. Whether other governmental or quasi-governmental regulations, rules, or requirements may be termed laws under s. 15(1) should be left for cases in which the issue arises.
Mr. Justice McIntyre then goes on to discuss the comparative concept which is later elaborated on in the Symes case, supra. He states at page 164:
It is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises. It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality. This proposition has found frequent expression in the literature on the subject but, as I have noted on a previous occasion, nowhere more aptly than in the well-known words of Frankfurter J. in Dennis v. United States, 339 U.S. 162 (1950), at p. 184:
It was a wise man who said that there is no greater inequality than the equal treatment of unequals.
It is important to compare the proper groups and, at the same time, to keep in mind that to treat two groups differently does not always mean that one or the other group is being discriminated against. As an example, in the present case, to treat Canadian Forces and RCMP personnel the same as other employees of the federal government may give rise to discrimination. It would be unfair to indiscriminately impose the post-retirement limitation on spousal survivor benefits when Canadian Forces and RCMP personnel usually retire at a much younger age than other federal government employees. It is clearly fairer to establish a deemed retirement age for the Canadian Forces and RCMP personnel closer to the normal retirement age of other federal government employees. Mr. Justice McIntyre elaborates on this point further, at page 165 of Andrews, supra, where he states:
In simple terms, then, it may be said that a law which treats all identically and which provides equality of treatment between “A” and “B” might well cause inequality for “C”, depending on differences in personal characteristics and situations. To approach the ideal of full equality before and under the law—and in human affairs an approach is all that can be expected—the main consideration must be the impact of the law on the individual or the group concerned. Recognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law, there must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another. In other words, the admittedly unattainable ideal should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.
The law is only concerned with relevant personal characteristics.
Mr. Justice McIntyre then dismisses the similarly situated test on the grounds that there could not be a fixed rule or formula for the resolution of the equality questions. He states, at pages 168-169:
Consideration must be given to the content of the law, to its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application. The issues which will arise from case to case are such that it would be wrong to attempt to confine these considerations within such a fixed and limited formula.
It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. 15 of the Charter. It is, of course, obvious that legislatures may—and to govern effectively—must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures. The classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society. As noted above, for the accommodation of differences, which is the essence of true equality, it will frequently be necessary to make distinctions. What kinds of distinctions will be acceptable under s. 15(1) and what kinds will violate its provisions?
He then concludes by giving his definition of “discrimination,” which has been repeated in many cases since then. He states, at pages 174-175:
… discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
The method of analysis in a discrimination case has been set out very recently by Mr. Justice Iacobucci in the Symes case, supra. He enlarges on the analysis undertaken in Andrews, supra. He states, at page 754:
At the outset, it is important to realize that, in order to determine whether particular acts demonstrate equality or inequality, one must necessarily undertake a form of comparative analysis. For the purpose of s. 15(1), Andrews, has rejected that the analysis should be governed by the comparison of similarly situated persons. Section 15(1) guarantees more than formal equality; it guarantees that equality will be mainly concerned with “the impact of the law on the individual or the group concerned”: Andrews, at p. 165.
He continues, at page 754:
The s. 15(1) challenge, of course, is to determine whether a “difference in treatment” between individuals, or an “identical treatment” of individuals, engages the Charter. Stated another way, the goal is to ensure that “a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another”: Andrews, at p. 165. In pursuit of this goal, McIntyre, J., in Andrews took the comparative analysis a step further and suggested that the Charter was not intended to eliminate all distinctions, but, in keeping with the language and purpose of s. 15, only those distinctions which are “discriminatory”.
Mr. Justice Iacobucci also quotes Mr. Justice McIntyre’s statement in Andrews, supra, that:
… Identical treatment may frequently produce serious inequality. (Emphasis added.)
In the case at bar the law is expressed in terms which appear to be neutral on its face. There is no doubt that in practice, it is female spouses who are excluded by the challenged limitations on eligibility to spousal survivor benefits. There was evidence to confirm this. However, I do not agree with plaintiffs’ counsel that these restrictions are based on irrelevant personal characteristics. These restrictions are based on the need to contain costs and the necessity for all pension plans to fix the plan’s liability as of a certain date. In 1901, when the legislation regarding pensions for spouses was first introduced, it was written in gender neutral language. At that time it was quite common to discriminate against women and if it was the intention to discriminate against women, as suggested by Dr. McCallum, the legislation would have done so.
Mr. Justice Iacobucci continues his analysis, at page 755 when he states:
It may be helpful at this stage to underscore two aspects of the discrimination concept which emanated from Andrews. First, it is clear that a law may be discriminatory even if it is not directly or expressly discriminatory. In other words, adverse effects discrimination is comprehended by s. 15(1): see also Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, at p. 41; McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 279.
Mr. Justice Iacobucci then deals with the need to search for disadvantages that exist apart from the particular legal distinction being challenged. He states, at pages 756-757:
The second aspect of discrimination I wish to note may be less a requirement of s. 15(1), and more of an analytical trend which can be discerned in Andrews, supra, and which has been expanded in subsequent cases. In considering the extent to which non-citizens permanently resident in Canada could claim the protection of s. 15(1), McIntyre, J., suggested in Andrews that this group constitutes a “good example of a discrete and insular minority’” (at p. 183). In borrowing this statement from American jurisprudence, McIntyre J. adverted to the need to contextualize the discrimination analysis. Wilson J. expanded upon this beginning in R. v. Turpin, [1989] 1 S.C.R. 1296, where she stated (at pp. 1331-32):
In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context…. Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage. A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.
What is recognized by both Andrews and Turpin is that the working definition of “discrimination” established in the former case is not self-applying. Instead, within the analytical parameters established by that definition, this court must “search for indicia of discrimination”: Turpin, at p. 1333.
Mr. Justice Iacobucci then quotes, at page 757, Chief Justice Lamer’s review of the main elements of a subsection 15(1) analysis found in R. v. Swain, [1991] 1 S.C.R. 933, at page 992:
The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination”. The second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant’s s. 15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15—namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.
In the case at bar, the distinction is not based on a personal characteristic, it is based on the employment status of the pensioner if and when he marries after reaching the age of 60. The distinction turns on the employment status of the individual before and after retirement, or before and after the individual commences to receive pension payments. Where age 60 is used in the legislation, it is not used as a personal characteristic but rather as a deemed retirement age to determine the individual’s employment status and consequential pension rights based on that status. Age 60, when used here, therefore, refers to a job-related characteristic, that is: employment status. Employment status is not a personal characteristic, and therefore not covered by subsection 15(1) of the Charter.
In discussing the application of theories of adverse effect discrimination in a case such as this, the Supreme Court of Canada broke the procedure down into two steps. The first inquiry is to determine whether the section creates an adverse effect upon women (or a subgroup) in comparison with men (or a subgroup). The second question would be whether a distinction has been found based upon the personal characteristic of sex. In this regard, the claimant would have to establish that the distinction had “the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to the opportunities, benefits and advantages available to others.” (See Symes, supra and Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219.)
On the first question the plaintiff attempted to make out a case of “adverse effect” discrimination by arguing that most spouses who marry pensioners who are older than 60, or who are younger than 60 but nonetheless retired, are women. Therefore, women are most likely to benefit by the removal of the limitation on eligibility for spousal survival benefits, or, conversely, women are most likely to suffer the burden imposed by the limitations. However, both those who do receive the benefit and those who do not, are women. I cannot make the comparative analysis here because the groups to be compared consist solely of women.
A very similar situation arose in Symes, supra, where Mr. Justice Iacobucci points out, at pages 764-765:
If the adverse effects analysis is to be coherent, it must not assume that a statutory provision has an effect which is not proved. We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision. In this case, that means that one must be cognizant of the fact that s. 63 defines child care expenses as an actual expense of money. In order to demonstrate a distinction between the sexes within an adverse effects analysis, one therefore needs to prove that s. 63 disproportionately limits the deduction with respect to actual expenses incurred by women.
The expert witness for the plaintiff, Margaret Townson, spoke of the general economic situation of elderly, unattached women and stated that it was caused primarily by the fact that in the past, women were normally not full-time members of the workforce and have no pensions as a result. There is therefore generally no independent retirement income for elderly women. However, the economic situation of elderly unattached women is not contributed to by the statutory limitations at issue here. That economic situation exists independently of the impugned sections of the legislation. There has been no evidence led as to the economic situation of the group of women affected by the limitations. There is some evidence as to the economic situation of Mrs. King—she has a retirement income of some $23,400 and owns an unencumbered condominium in Victoria, British Columbia. However, her income was approximately $6,000 more than the average income of elderly, unattached women as provided by Ms. Townson.
Mr. Justice Iacobucci refers to this lack of evidence in Symes, supra, when he states, at page 767:
Equally, the material which has been placed before this Court demonstrates certain distinctions created by s. 63, but no attempt has been made to link these distinctions to personal characteristics comprehended by an enumerated or analogous grounds approach to s. 15(1) of the Charter.
What he is saying is that it is not enough just to point to distinctions in the way groups are treated. The plaintiff must also show that that group is generally disadvantaged, and that there is a link between the distinctions in treatment and the disadvantage suffered by the group. This has not been done in the case at bar.
I must now consider the second question and whether the legislative limitation on spousal survival benefits has the effect of imposing a burden, obligation or disadvantage upon one group which is not imposed upon others, or of withholding or limiting access to opportunities, benefits or advantages from one group which are available to others. The plaintiff submitted on the one hand that the basis for the alleged discrimination is sex. However, the distinction that the plaintiff is attempting to draw is between the group of women who marry pensioners after the pensioners have turned 60, and the group of women who marry pensioners (and, presumably, potential pensioners) before the pensioners have turned 60. This distinction is clearly not on the basis of sex. The Supreme Court of Canada made it clear in Symes, supra, that the burden or benefit could not, as a logical proposition, fall upon both sexes. It is not sufficient to simply say that women are most often “affected” by the section.
The plaintiff also argued that the basis for the alleged discrimination is age. The first determination to be made is: what are the two groups being compared? Once that is determined, the next step would be to determine whether there is a burden imposed upon, or an advantage given to, the younger group or the older group. I have already determined that the “age 60” limitation found in the legislation is in fact a deemed retirement age for the purpose of determining employment status. As such, it is not a personal characteristic of the male pensioners, and therefore not a ground for a finding of discrimination on the basis of age. If the age distinction is between an “older” group of women who marry post-retirement men, and a “younger” group of women who marry pre-retirement men, it still must be determined whether either group suffers a burden or gains an advantage. There has been no evidence led by either party to show that women who marry pensioners after the age of 60 are any more disadvantaged than their counterparts who marry pensioners before the pensioners reach the age of 60. Nor was there evidence led which compared the economic situation of women who marry post-retirement pensioners and the economic situation of older, unattached women generally. Finally, there has been no evidence led to show that women who marry post-retirement pensioners are a disadvantaged group subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society. Ms. Townson’s evidence was related to elderly unattached women but there was no evidence that this was the group of women who married pensioners over 60.
Mr. Justice Iacobucci stated, at page 761 in Symes, supra:
Finally, assuming that both an inequality and discrimination can be found, it must be determined whether the personal characteristic at issue constitutes either an enumerated or analogous ground for the purposes of s. 15(1) of the Charter.
In this case, inequality has not been established, therefore it is not necessary to proceed to determine the personal characteristics which are alleged to form the basis for discrimination.
However, in any event, it is my view that there is no discrimination on the basis of sexual stereotype. The exception does not draw on personal characteristic as alleged by the plaintiffs that widows marry for money. It is not based on a sex-based stereotypical assumption.
In my view none of the challenged subsections violate section 15 of the Charter. There is no discrimination on the basis of sex or age.
Since the subsections in question do not violate section 15 of the Charter I do not need to decide if the provisions represent a reasonable limit prescribed by law within the meaning of section 1 of the Charter. Nor do I need to decide the questions of whether the Charter provisions operate retroactively or retrospectively since I have not found any violation of the plaintiffs’ rights. Lastly I do not need to decide on the appropriate remedy in light of my views on section 15. However, I do agree with the parties that if section 15 is applicable and is not saved by section 1 the plaintiffs are entitled to a declaration that the provision in question of the CFSA is unconstitutional and that the provisions in question of the DSPCA are unconstitutional.
The plaintiffs’ claims in both actions are dismissed. If counsel are unable to agree on costs they may speak to me.