Sutherland v. Canada
A-311-94
Desjardins J.A. and Isaac C.J.
2/1/97
37 pp.
Appeal from trial judgment ([1994] 3 F.C. 662) dismissing actions challenging Canadian Forces Superannuation Act (CFSA), s. 31, denying survivor pension benefits to spouses who marry pensioner after later of pensioner reaching age 60 or retiring, and Defence Services Pension Continuation Act (DSPCA), ss. 25, 26, denying survivor pension benefits to spouses who marry pensioner after earlier of pensioner reaching age 60 or retiring-Mr. Sutherland receiving pension under CFSA since 1970-Marrying in 1983, at age 63-Should wife survive him, not entitled to survivor benefit under CFSA because at time of marriage, Mr. Sutherland over 60-Mr. King receiving pension under DSPCA from 1948 until 1990-Married in 1970, at age 65-Following husband's death in 1990, wife denied survivor's benefits because at time of marriage husband both retired and over 60-Sutherlands seeking declaration of invalidity of CFSA, s. 31(1) pursuant to Constitution Act, 1982, s. 52-Mrs. King requesting both declaration of invalidity of DSPCA, s. 26(d), (e), declaration of entitlement to survivor benefits under DSPCA pursuant to Charter, s. 24-All of those receiving survivor pensions under DSPCA plan female-Trial Judge finding different treatment of two groups not always discrimination; restrictions based on need to contain costs; necessity for all pension plans to fix plan's liability as of certain date; distinction drawn by provisions in question not based on personal characteristic, but on employment status of pensioner if and when marries after age 60-Concluding no discrimination on basis of sex, age contrary to Charter, s. 15-Appeals dismissed-Per Desjardins J.A. (Hugessen J.A. concurring)-History of provisions reviewed-Appellants not satisfying second step of either La Forest J.'s two- or Cory J.'s three-step analysis of discrimination found in Egan v. Canada, [1995] 2 S.C.R. 513-No breach of Charter, s. 15-Second step in La Forest's analysis whether distinction resulting in disadvantage, namely burden, obligation or disadvantage not imposed on others-Second step in Cory J.'s analysis whether distinction created by law based on personal characteristic and, if so, whether resulting in discrimination (denial of equality right found in s. 15(1) encompassing burden, obligation or disadvantage not imposed on others)-Mr. Sutherland could only claim discrimination based on age, specifically mentioned as factor of exclusion-If such discrimination existing, it is direct discrimination-Mrs. King, Mrs. Sutherland could only claim denied benefit of pension by reason of sex if showed women adversely affected by legislation-Could not allege direct discrimination on account of sex, since legislation not referring to sex-No flaws in Trial Judge's analysis of impugned provisions of CFSA-CFSA extending eligibility for survivor benefits from normal cutting-off time of actual retirement age of member to deemed retirement age of 60 in public service-Age 60 ceiling for extension serving to treat members of military on equal footing with civil servants-When members reach such age, marry subsequently, exclusion not discrimination since not at disadvantage by comparison with others-In fact, receiving same treatment as those in comparable government regimes-What appellants feel is taken away from them, others do not have-No discrimination occurring-Under DSPCA age alone disqualifies-Crystallizing event upon which survivor benefit potentially payable date of retirement or turning 60, if married at time-Mr. King's marital status at cutting-off date of retirement or turning 60 not ongoing condition justifying application of Charter-No fault with Trial Judge's finding anti-selection (presence of benefit tending to encourage people to do things might not otherwise do, driving up cost of benefit) secondary objective to main objective (cost containment) of Acts, but that not based on any stereotypical view about female behaviour-Exclusion in CFSA applying equally to male, female plan members-Under DSPCA only widows eligible to receive survivor benefits-Women cannot claim discrimination on basis of sex in respect of benefit only available to women-Per Isaac C.J. (concurring in result): DSPCA, s. 26(e) and CFSA, s. 31(1) infringing Charter, s. 15-Trial Judge erred in holding "over sixty years of age" requirement in CFSA, DSPCA, not distinction based on age, but distinction based on employment status-Phrase "over sixty years of age" limiting availability of survivor benefits to cases in which contributors marry at or before age 60-Trial Judge's conclusion phrase surrogate for age of retirement rewriting legislation contrary to plausible meaning rule-Regardless of Parliament's motivation in enacting provisions, precluding eligibility for survivor benefits on basis of age-Parliamentary intention to extend benefits to surviving spouses of post-retirement marriages irrelevant to whether provisions discriminatory-Trial Judge erred by introducing into s. 15(1) analysis motivation of Parliament in enacting two provisions-Legislative intent of provision consideration properly belonging in Charter, s. 1 analysis-First step in equality (s. 15(1)) analysis to determine whether impugned law creating distinction which denies claimant's right to equality before, under law or to equal benefit of law-Second step to determine if distinction discriminatory because denies equality on basis of enumerated, analogous ground, and imposing disadvantage or burden by withholding, limiting access to benefits or advantages available to others-DSPCA, s. 26(e) and CFSA, s. 31(1) creating distinction-In denying survivor benefits to surviving spouses of contributors who married when over 60, drawing distinction between surviving spouses who marry contributors at or before latter reaching 60, and those who marry after contributors reach 60-Distinction at least amounting to adverse effect discrimination-Surviving spouses becoming entitled to survivor benefits neither upon sixtieth birthday of husbands nor upon marriage, but upon death of husbands-When Mr. King died in 1990, Charter, s. 15 already in force-Denial of survivor benefits to Mrs. King continuing-Amounting to denial of economic benefit available to surviving spouses of contributors who married at or before age 60-"Over sixty years of age" distinction clearly constituting denial of equal benefit of law-Survivor pension conferring economic benefit, access to which denied to surviving spouses of contributors who marry after 60-Appropriate groups for comparison those created by legislation: surviving spouses of contributors who marry after 60 should be compared with surviving spouses of contributors who married at or before 60, rather than with public servants not mentioned in legislation-Trial Judge's factual findings supporting conclusion discriminatory provisions justified under s. 1-Provisions clearly limits prescribed by law-Objectives, i.e. cost containment, necessity to fix liability of pension plan as of certain period, sufficiently pressing, substantial to justify limitation of Charter right-Age-based limitation resulting in substantial cost saving, rationally connected to objectives-Parliament seeking through impugned provisions of DSPCA, CFSA to distribute limited resources among competing groups, including current, former contributors, surviving spouses, children-Proportionality test satisfied if government demonstrating "reasonable basis" for age-based limitation-Trial Judge's factual findings concerning purpose of extension of benefits to age 60, increased cost of extending benefits to excluded group, actuarial uncertainty attached to extension of benefits, demonstrating reasonable basis for limitation on appellants' equality rights-Limit reasonable, justified under Charter, s. 1-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, 24-Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52-Canadian Forces Superannuation Act, R.S.C., 1985, c. C-17, s. 31(1)-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).