Irwin Cotler:  A legal lapdog fetches an excuse for injustice.

 

 

Cotler's Notice of Appeal

 

 

Irwin Cotler: Canada's new Minister of Justice.  Friend or foe of same-sex marriage?

 

 

"We're seeking guidance because right now we've got competing views from the courts as to when the time line should be drawn."
Irwin Cotler, Justice Minister and Attorney General, Jan. 20, 2004

 

 

"There is no competing view from any court. The only competing views are between the Department of Justice and the Court."
Douglas Elliott, lawyer representing couples in the CPP case, Jan. 20, 2004

 

 

 

Surviving partners seek spousal pensions (Photo of George Hislop by equalmarriage.ca, 2003)

 

 

 

"I was very emotional about this decision. I saw many men lose their partners to AIDS during the 80’s and 90’s. They suffered emotionally and financially. I also knew Ronnie Shearer. I know how important he was in George’s life, and how devastating his death was to George. The judge described George as a legend. I said that his life is proof that if you are an iconoclast long enough, you become an icon."
Douglas Elliott, lawyer representing George Hislop and others

 

 

Plaintiff's Statement of Claim

Defendant's Statement of Defence

Plaintiff' Reply

Plaintiff's opening arguments

Justice Macdonald's decision

 

 

"We have the occasion ... to build for our children and the children of our children a better Canada - a Canada which will recognize the diversity and equality which should be in our society, a Canada which will protect the weakest in society ... a Canada which will be an example to the world."
Jean Chretien, Minister of Justice, House of Commons, Feb. 17, 1981

 

 

 

 

 

 

 

Trial Impressions
by Ed Kotanen

Click on images to enlarge sketches

sketch 1  sketch 2  sketch 3
sketch 4  sketch 5  sketch 6

CPP Trial:
Class Member's Notes by Jim Knoop

 

 

 

History of the Widow's pension

Originally called the "widow's pension," the Canada Pension Plan was available to all widows of deceased male contributors. Widowers were entitled to a pension, but only if they were disabled at the time of their wives' deaths.

1965
Creation of Canada Pension Plan
1966
Commencement of CPP
1975
All men allowed to collect their late wives' pensions
1987
Common-law partners recognized but same-sex couples expressly excluded.
2000
Canada Pension Plan Act recognized same-sex couples, retroactively to 1998

 

 

 

Link to  Elliott & Kim - our heroes fighting for our right to marriage in Ontario

 

 

 

"It is important to appreciate that the money in the CPP does not belong to the federal government. It is not tax money, and the government cannot spend it for its own purposes. It is the property of the working men and women of Canada, and the federal government holds the funds for the benefit of them and their families."

 

 

 

Lawyer Douglas Elliott and client George Hislop (photo by equalmarriage.ca, 2003)
Lawyer Douglas Elliott with client George Hislop

 

 

 

"The amount of the pensions in issue in this action is small relative to the enormous size of the CPP fund. Even if the class members are entirely successful, no increase in premiums will be required of contributors."

 

 

 

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"It is important to note that there is no assertion that there are insufficient funds to meet the needs for survivor's pensions of other Canadians if these class members receive their survivor's pensions."

 

 

 

Equality Forum will feature Canada in Philadeplphia, April 26 - May 2, 2004)

 

 

 

Number of times the Ontario same-sex marriage case is referred to and cited in the Plaintiff's opening argument:
28

 

 

 

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Advocacy News - CPP

January 20, 2004 (Updated Jan. 21)

Cotler fetches an excuse for injustice
A legal lapdog for the Liberal election campaign

"It is a mean-spirited move and the government will undoubtedly lose its case ... Ottawa looks like the bully in this fight."
"Feds still discriminate against gays", The Edmonton Sun, Jan. 21, 2004


Irwin Cotler, our Justice Minister and Attorney General of Canada, continues to show Canadians that he is prepared to compromise justice and offend equality rights for political expediency. Today his Liberal government announced that they would continue to fight gays and lesbians who are seeking funds owed to them by the Canada Pension Plan (CPP).

Last month, Ontario's Superior Court of Justice ordered the government to payout money owed to surviving partners of same-sex relationships (see Jan. 6 report below). But in a pattern long-established by this discriminatory government, gays and lesbians will have to continue to fight for their rights. Why?

"We're seeking guidance because right now we've got competing views from the courts as to when the time line should be drawn," Cotler told reporters (Canadian Press, Jan. 20), without citing the competing view.

It's the same old tired argument the Liberals used when they justified their ongoing attack against marriage rights for same-sex couples. In the marriage challenge there was one judge, Justice Pitfield (nationally discredited), who had a perverse view on Canada's constitution that he used to justify discrimination. The Liberals lost that excuse, when 10 other judges disagreed and ordered the government to open marriage for all couples.

In the CPP case, the courts have been clear, despite the disingenuous claims of Justice Minister Cotler, a lawyer representing couples in the case told us today.

"There is no competing view from any court," Douglas Elliott said. "The only competing views are between the Department of Justice and the Court. The Courts have been consistent since Vriend that we are entitled to full equality. The only brief exception was Justice Pitfield's decision, which has been overturned. Unfortunately, we have to keep returning to Court to make that point, again, and again, and again... "

Justice Minister Cotler appears to be a legal lapdog for the Liberal Party's election campaign. His orders seem to be to keep all issues relating to same-sex couples on the back-burner until after an upcoming election. In doing so, he offends our Canadian Charter, our Justice System, and Canadians across this country who are left without rights and funds. Cotler is quickly destroying his credibility and credentials while the Liberal party shows its ongoing contempt for the courts and our Charter.

We all deserve better.


January 6, 2004

A victory for same-sex spousal pensions

"When I first applied for my deceased partner's Canada Pension benefits, and I was denied that claim, I really felt as though our relationship didn't count," Mr. McNutt said of the years he spent with Gary Pask. "So this is a real victory, not only for me but for my partner."
The Halifax Herald, Dec. 20, 2003


Ontario's Superior Court of Justice released its decision from the Canada Pension Plan class action (see Dec. 16 report, below) on Friday, December 19, just as we began a break for the Christmas holiday. The court agreed that the CPP owes survivor benefits to partners from same-sex relationships.

"This judgment will result in a recovery for our thousands of clients of between $100 and $400 million," lawyer Douglas Elliott (Elliott & Kim) told us. "This makes it the largest class action judgment in Canadian legal history. The use of class actions in this context is novel. It is the only time a class action award has been made to remedy discrimination against gays and lesbians. We had a wonderful national legal team who worked very hard to achieve this result, at great risk. If we had failed, they would have been paid nothing for their efforts. I am also grateful to our wonderful representative plaintiffs, who provided superb leadership. Thanks also to Justice Macdonald and her clerk, Lynn Iding, who must have put in a tremendous effort to have the decision released in time for Christmas."

In a judgment that repeatedly cited the Ontario marriage decision from the Ontario Court of Appeal, Justice Ellen Macdonald wrote, "I cannot find that there was a pressing and substantial objective in excluding the class members."

The government had settled with some individuals, but only to individuals who had pressed hard and early for their duly owed funds. Others, including the members of this class action, were denied their funds, forcing this court action. The court declined to award damages in the requested amount of $20,000 for each class member.

"While I find that there was lethargy on the part of the Crown in responding to its obligations as a result of s. 15 of the Charter, I cannot find bad faith," Justice Macdonald wrote. "While the Crown did not put the information about the settlement strategy into the public domain, I am not prepared to draw the inference that it did not do so because of a deliberate decision to keep the existence of the settlement strategy secret."

The court ordered Canada Pension Plan to provide survivor benefits commencing from the date when the Charter came into full force and effect: April 17, 1985. Payments will be calculated, with interest, based on when survivors should have begun receiving benefits: one month following the death of their spouse. The Court agreed that the class members' legal costs should be paid by the crown.

"This is a wonderful Christmas present for gay and lesbian Canadians," Douglas Elliott said. "Once again, it is the Courts that have had to set in to rectify discriminatory laws that Parliament would not fix. This is a clear message, reinforcing Halpern [the Ontario marriage court decision], that 'almost equal does not equal equal.' Partial equality is no answer under the Charter. We will not settle for the middle of the bus.

"It is thrilling to me that our lesbian and gay pioneers are finally going to get fair treatment. Many of our clients have expressed their strong emotions at having their relationships finally given the recognition that they deserved. The government has thirty days to appeal. Since the judge based her decision largely on the Court of Appeal’s decision in Halpern, I believe that any such appeal is doomed to fail. Unfortunately, the pattern has been that the government usually does appeal. And then we win."


December 16, 2003

Surviving partners seek spousal pensions
$400 Million Canada Pension Plan Class Action

"It is … difficult to see a rational connection between protecting heterosexual spouses from income insecurity on the death of their partner and denying cohabiting gay and lesbian partners the same protection. In each case the survivors will have been partners of former employees who contributed to the pension plan in the expectation of its equitable distribution. The sexual orientation of surviving partners can in no way be seen as any more relevant to whether they should be entitled to income protection their partners have paid for, than would be their race, colour, or ethnicity. Protecting surviving partners is a laudable objective, but it is not necessary to exclude gay and lesbian sexual relationships in order to achieve that objective."
Madam Justice Abella, Rosenberg v. Canada (Attorney General) (1998), 38 O.R. (3d) 577 per Abella, J.A. at p. 586.

"In the case of gay and lesbian rights, the federal government has chosen instead to wait until the courts force them to correct their discriminatory behaviour towards gays and lesbians. While that may be politically expedient, it is not in accordance with the duty owed to the class members."
Plaintiff's opening arguments in Hislop et al v. Canada (Sept. 2003)


Long-time gay rights activist George Hislop (shown here with partner Ronnie Shearer) might celebrate Christmas with a sense of justice and security this holiday season. George is part of a group of surviving partners who were denied pension benefits because they had a same-sex spouse. A decision from their Canada Pension Plan (CPP) class action court case is expected soon.

"In its simplest terms, this case is about a right to equal benefits for equal premiums," says the opening argument from the group's legal team (including Elliott & Kim).

Gays and lesbians were compelled, along with everyone else, to contribute to the CPP, but they were unable to claim benefits or have their relationships recognized. However, following the arrival of the Canadian Charter, gays and lesbians began to exercise their new rights.

"Beginning in the early 1990s ... gays and lesbians began to complain about the denial of access to the CPP survivor's pension," the plaintiff's say. "The need for this pension was given greater urgency as AIDS cut a swath through the gay community in the 1980s and the 1990s."

Increasingly, same-sex couples gained recognition in court, culminating in the Supreme Court of Canada case about same-sex spousal support: M v. H.

"Following ... M. v. H., the evidence will show that at the highest levels of the federal government it was concluded that the exclusion of same sex couples from CPP survivor pensions was unconstitutional and would be struck down by the Court. The federal government began settling cases that were ripe for a ruling on the point, thus avoiding the creation of any adverse precedent. However, despite their belief that the law that they were administering was unconstitutional, they continued to reject the claims of all other same sex survivors."

The government response to Supreme Court of Canada's demand for equality was to introduce Bill C-23, the Modernization of Benefits and Obligations Act. The government held back from delivering full equality by excluding same-sex marriage from legal recognition. They also compromised their revision of the Canada Pension Plan Act.

"These amendments did nothing to correct the discrimination against our class members. For same sex couples, no survivor's pension would be paid unless the contributor died after January 1, 1998. In addition, for any eligible same sex survivors, pension payments would not begin until August 2000 ... The result was that all same sex survivors whose partners died before January 1, 1998 were denied a survivor's pension unless they had the temerity to appeal the original denial and had done so by February 11, 2000. This settlement strategy, and the necessity of appealing a denial to invoke it, was not advertised in any way. Those lucky enough to fall into the settlement strategy were paid a survivor's pension including arrears back to one month following the date of death of his or her partner, but without interest."

The surviving spouses argue that the government of Canada was obligated to be in compliance with the Canadian Charter on April 17, 1985, the deadline established in 1982 when the Charter was introduced.

"The unlawful discrimination began on April 17, 1985, and it continues to this day. There is no legal magic to the January 1, 1998 date. That date was purely arbitrary and legally indefensible. It is an arbitrary date that only applies to same sex survivors. It cannot be dressed up to be anything else other than what it is: discrimination based on sexual orientation ... Further, this situation constitutes an unjust enrichment of the [government]. While the gay and lesbian contributors were lawfully charged a CPP premium, and paid it, their survivors were unjustly and unlawfully denied a benefit."

The government's settlement strategy

The government's actions reveal that it understands it was in violation of pension holder's rights, witholding funds to all except the lucky ones who had the knowledge and resources to mount a campaign to fight for their money.

The government "instructed its front line staff to continue to discriminate against same sex survivors" and "gay and lesbian claimants were told that same sex couples had no right to a survivor's pension."

It was "a gross violation" of the government's financial obligations to the surviving gay and lesbian spouses, the plaintiffs say, "a gross dereliction of its duties by paying off the 'squeaky wheels' while resolutely and uniformly discriminating against all other same sex couples. 99. In most of these settlements, the claimants were paid the full survivor's pension to which they would have been entitled as a heterosexual common law partner, back to one month following the date of death."

No rational reason for government discrimination

The government's failure to provide CPP benefits to surviving spouses from same-sex relationships fails a subjective-objective test.

"It must be seen from the position of a reasonable person who is a member of the vulnerable group. The question to be asked is whether a well-informed and reasonable person who is gay or lesbian would agree that the exclusion of same sex couples whose partners died before January 1, 1998 helps to meet the objective of assisting older Canadians whose spouses have died achieve long-term financial security in order to have the dignity and freedom of meeting their basic financial needs."

The surviving spouses' settlement strategy

The survivors have asked the court to order the government "to accept applications and pay pensions for class members whose partners died between April 17, 1985 and January 1, 1998, in the same manner and using the same criteria as same sex survivors whose partners died after January 1, 1998."

They are also seeking interest, damages, and costs. 


Legal Team and Class Members

Legal Team and Class Members
Left to right (top to bottom): Eric Brogaard (Representative Plaintiff, B.C.), Ken Smith (Smith & Hughes, B.C.), Sharon Matthews (Camp Fiorante Matthews, B.C.), Gabrielle Pop-Lazic (McGowan & Associates, Ont.), Douglas Elliott (E&K, Ont.), Mike Law (Chapman Goddard Kagan, Manitoba), Gail Meredith (front row, Representative Plaintiff, B.C.), Dawna Ring Q.C. (N.S.), Patricia LeFebour (E&K, Ont.), and George Hislop (Representative Plaintiff, Ont.)


Read a selection of comments from our mail.Link to our media coverage of related issues.