PRACTICE
Parties
Standing
Issue whether deceased claimant’s estate can continue outstanding Canada Pension Plan (CPP) claim based on allegation CPP provision violates Canadian Charter of Rights and Freedoms, s. 15 equality rights—Ethel, Reginald Vincent lived common‑law from 1974 to 1986—In 1996, Ms. Vincent applied for Division of Unadjusted Pensionable Earnings under CPP—At that time, credit‑splitting provisions applied to common‑law partners who separated in 1987 or later—She took position January 1, 1987 cut‑off date violated Charter equality guarantee—Minister rejected application and Ms. Vincent died before appeal to Review Tribunal heard— Minister moved for dismissal, arguing estate lacked standing to maintain Charter application but Tribunal distinguished authorities cited as ones where attempts made to commence litigation after death while here estate just continuing existing proceeding—MacKay J. denied Minister’s judicial review application: Canada (Attorney General) v. Vincent Estate, 2004 FC 1016, agreeing that no authority cited by Minister stood for proposition Charter claim commenced by claimant terminates upon claimant’s death and may not be carried forward by estate—Parties agreed that should Charter attack on legislation prevail, financial benefits at stake as grandchild would have survivor benefits increase—Framing dismissal motion as matter of standing served Minister poorly as focussed attention on status, procedure rather than on nature of rights estate seeking to enforce and when Minister’s authorities reviewed from substantive rights perspective, they fail to support conclusion urged upon Court by Minister— Meaning of word “standing”—CPP contemplates estate may apply for credit‑splitting (s. 53.3(1)) so estate may bring and, by extension, continue credit‑splitting application and thus has standing in sense of capacity—Also has sufficient interest as only entity capable of pursuing claim—Nor can question of justiciability arise, given statutory basis for credit‑splitting— Only questionable “standing” issue is estate’s entitlement on merits—Question raised by this appeal is whether constitutional rights can be crystallized during lifetime so can be pursued after death—Minister arguing estate not person, so cannot claim benefit of s. 15, which begins “Every individual . . .”—Careful reading of cases cited by Minister revealing that, while employing language of standing in dismissing claims, underlying rationale that remedy estate seeks can be invoked only by one whose rights infringed—Minister further argued Charter rights, being personal to individual, do not survive death—Question whether estate’s right to initiate proceedings in respect of constitutional rights is matter of provincial survival of actions legislation i.e. whether constitutional rights so inherently personal that exist outside survival of actions legislative framework—Would appear Ontario Court of Appeal (O.C.A.) of opinion issue not one of survival of actions: Hislop v. Canada (Attorney General) (2004), 73 O.R. (3d) 641 (C.A.), case concerning benefits cut‑off date for same‑sex couples—In Hislop, O.C.A. applied British Columbia Court of Appeal decision holding s. 15 rights personal, die with person, cannot be enforced by estate, separate, artificial entity—But such authorities do not preclude possibility constitutional rights could be crystallized by appropriate action during person’s lifetime—This issue not argued and Court unwilling to decide without benefit of argument by counsel—Matter returned to Review Tribunal for full hearing and, should appeal be taken therefrom, Court will have before it full record, Tribunal’s analysis of issues— Appeal dismissed—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. 15, 24—Canada Pension Plan, R.S.C. 1970, c. C‑5, s. 53.3 (as enacted by S.C. 1986, c. 38, s. 23).
Canada (Attorney General) v. Vincent Estate (A‑403‑04, 2005 FCA 272, Pelletier J.A., judgment dated 15/8/05, 14 pp.)