Law v. Canada (Minister of Employment and Immigration)

Law v. Canada (Minister of Employment and Immigration)
Collection
Supreme Court Judgments
Date
1999-03-25
Report
[1999] 1 SCR 497
Case number
25374
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 25374
Decision Content
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497
Nancy Law Appellant
v.
Minister of Human Resources Development Respondent
Indexed as: Law v. Canada (Minister of Employment and Immigration)
File No.: 25374.
Hearing: January 20, 1998.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major and Bastarache JJ.
Re-hearing ordered: December 3, 1998.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
Judgment: March 25, 1999.
on appeal from the federal court of appeal
Constitutional law -- Charter of Rights -- Equality rights -- Canada Pension Plan gradually discounting survivor’s benefits for able-bodied claimants without dependent children until threshold minimum age of 35 reached and delaying those benefits until retirement age -- Survivors benefits delayed to retirement age -- Appellant able-bodied, under 35 and without dependent children -- Whether denial of benefits discrimination on basis of age -- Whether denial of benefits an infringement of Charter ’s equality provision -- Canadian Charter of Rights and Freedoms, s. 15 -- Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 44(1) (d), 58 .
The appellant, a 30-year-old woman without dependent children or disability, was denied survivor’s benefits under the Canadian Pension Plan (CPP). The CPP gradually reduces the survivor’s pension for able-bodied surviving spouses without dependent children who are between the ages of 35 and 45 by 1/120th of the full rate for each month that the claimant’s age is less than 45 years at the time of the contributor’s death so that the threshold age to receive benefits is age 35. The appellant unsuccessfully appealed first to the Minister of National Health and Welfare and then to the Pension Plan Review Tribunal, arguing that these age distinctions discriminated against her on the basis of age contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms . A further appeal was made to the Pension Appeals Board, which, in a trial de novo, concluded that the impugned age distinctions did not violate the appellant’s equality rights. The majority of the Board also found that, even if the distinctions did infringe s. 15(1) of the Charter , they could be justified under s. 1 . A subsequent appeal to the Federal Court of Appeal was dismissed largely for the reasons of the Pension Appeals Board. The constitutional questions here queried whether ss. 44(1) (d) and 58 of the Canada Pension Plan infringe s. 15(1) of the Charter on the ground that they discriminate on the basis of age against widows and widowers under the age of 45, and if so, whether this infringement is demonstrably justified in a free and democratic society under s. 1 .
Held: The appeal should be dismissed. The first constitutional question should be answered in the negative; the second constitutional question did not need to be answered.
In the brief history of this Court’s interpretation of s. 15(1) of the Charter , there have been several important substantive developments in equality law. Throughout these developments, although there have been differences of opinion among the members of this Court as to the appropriate interpretation of s. 15(1) , there has been and continues to be general consensus regarding the basic principles relating to the purpose of s. 15(1) and the proper approach to equality analysis. The present case is a useful juncture at which to summarize and comment upon these basic principles, in order to provide a set of guidelines for courts that are called upon to analyze a discrimination claim under the Charter .
It is sensible to articulate the basic principles under s. 15(1) as guidelines for analysis, and not as a rigid test which might risk being mechanically applied. Equality analysis under the Charter must be purposive and contextual. The guidelines set out here are just that -- points of reference which are designed to assist a court in identifying the relevant contextual factors in a particular discrimination claim, and in evaluating the effect of those factors in light of the purpose of s. 15(1) . Inevitably, the guidelines summarized here will need to be supplemented in practice by the explanation of these guidelines in these reasons and those of previous cases, and by a full appreciation of the context surrounding the specific s. 15(1) claim at issue. As s. 15 jurisprudence evolves it may well be that further elaborations and modifications will emerge.
General Approach
(1) It is inappropriate to attempt to confine analysis under s. 15(1) of the Charter to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach.
(2) The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues: (A) whether a law imposes differential treatment between the claimant and others, in purpose or effect; (B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and (C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee. The first issue is concerned with the question of whether the law causes differential treatment. The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1) .
(3) Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:
A. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?
B. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
and
C. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
Purpose
(4) In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
(5) The existence of a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1) is essential in order to found a discrimination claim. The determination of whether such a conflict exists is to be made through an analysis of the full context surrounding the claim and the claimant.
Comparative Approach
(6) The equality guarantee is a comparative concept, which ultimately requires a court to establish one or more relevant comparators. The claimant generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry. However, where the claimant’s characterization of the comparison is insufficient, a court may, within the scope of the ground or grounds pleaded, refine the comparison presented by the claimant where warranted. Locating the relevant comparison group requires an examination of the subject-matter of the legislation and its effects, as well as a full appreciation of context.
Context
(7) The contextual factors which determine whether legislation has the effect of demeaning a claimant’s dignity must be construed and examined from the perspective of the claimant. The focus of the inquiry is both subjective and objective. The relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim.
(8) There is a variety of factors which may be referred to by a s. 15(1) claimant in order to demonstrate that legislation demeans his or her dignity. The list of factors is not closed. Guidance as to these factors may be found in the jurisprudence of this Court, and by analogy to recognized factors.
(9) Some important contextual factors influencing the determination of whether s. 15(1) has been infringed are, among others:
(A) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue.
The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of “discrete and insular minorities” should always be a central consideration. Although the claimant’s association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.
(B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others.
Although the mere fact that the impugned legislation takes into account the claimant’s traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant’s actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant’s actual situation.
(C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society.
An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.
and
(D) The nature and scope of the interest affected by the impugned law.
The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1) .
(10) Although the s. 15(1) claimant bears the onus of establishing an infringement of his or her equality rights in a purposive sense through reference to one or more contextual factors, it is not necessarily the case that the claimant must adduce evidence in order to show a violation of human dignity or freedom. Frequently, where differential treatment is based on one or more enumerated or analogous grounds, this will be sufficient to found an infringement of s. 15(1) in the sense that it will be evident on the basis of judicial notice and logical reasoning that the distinction is discriminatory within the meaning of the provision.
As a result of the ages specified under the CPP, a clear distinction is drawn between the appellant and others on the basis of age. Both the delay in the receipt of benefits and the reduced entitlement to benefits constitute a denial of equal benefit of the law under the first step of the equality analysis.
Even if entitlement to a survivor’s pension benefit were dependent upon the interplay of age, disability, and parental status, this interplay would not preclude the appellant from establishing that a distinction had been drawn on one or more of the grounds in s. 15(1) of the Charter . A claimant can articulate a discrimination claim under more than one of the enumerated and analogous grounds. Such an approach to the grounds of discrimination accords with the essential purposive and contextual nature of equality analysis under s. 15(1) of the Charter . Where a party brings a discrimination claim on the basis of a newly postulated analogous ground, or on the basis of a combination of different grounds, this part of the discrimination inquiry must focus upon whether and why a ground or confluence of grounds is analogous to those listed in s. 15(1) . This determination is made on the basis of a complete analysis of the purpose of s. 15(1) , the nature and situation of the individual or group at issue, and the social, political and legal history of Canadian society’s treatment of the group. A ground or grounds will not be considered analogous under s. 15(1) unless it can be shown that differential treatment premised on the ground or grounds has the potential to bring into play human dignity. If the court determines that recognition of a ground or confluence of grounds as analogous would serve to advance the fundamental purpose of s. 15(1) , the ground or grounds will then be so recognized.
A discrimination claim positing an intersection of grounds can be understood as analogous to, or as a synthesis of, the grounds listed in s. 15(1) . If the CPP had based entitlement on a combination of factors, the appellant would still have been able to establish the requisite distinction, whether on the basis of age alone, or based on a combination of grounds.
Relatively speaking, adults under the age of 45 have not been consistently and routinely subjected to the sorts of discrimination faced by some of Canada’s discrete and insular minorities. It is accordingly more difficult as a practical matter for this Court to reason, from facts of which the Court may appropriately take judicial notice, that the legislative distinction at issue violates the human dignity of the appellant.
Neither the purpose nor the effect of the impugned legislative provisions was demonstrated to violate the appellant’s human dignity so as to constitute discrimination even though reference was made to government reports and other sources which favour extending survivor’s pensions to younger spouses on the basis that they suffer immediate financial need. The purpose and function of the impugned CPP provisions is not to remedy the immediate financial need experienced by widows and widowers, but rather to enable older widows and widowers to meet their basic needs during the longer term. The notion that young persons experience fewer impediments to long-term labour force participation and are generally in a better position than older persons to replace independently the income of a deceased spouse over the long run as a working member of Canadian society is reflected in the survivor’s pension provision of the CPP. The increasing difficulty with which one can find and maintain employment as one grows older is a matter of which a court may appropriately take judicial notice.
Although the law imposes a disadvantage on younger spouses in this class, it is unlikely to be a substantive disadvantage, viewed in the long term. The differential treatment of younger people does not reflect or promote the notion that they are less capable or less deserving of concern, respect, and consideration, when the dual perspectives of long-term security and the greater opportunity of youth are considered. Nor does the differential treatment perpetuate the view that people in this class are less capable or less worthy of recognition or value as human beings or as members of Canadian society. Given the contemporary and historical context of the differential treatment and those affected by it, the legislation does not stereotype, exclude, or devalue adults under 45. The law functions not by the device of stereotype, but by distinctions corresponding to the actual situation of individuals it affects. By being young, the appellant, a fortiori, has greater prospect of long-term income replacement.
The clear ameliorative purpose of the pension scheme for older surviving spouses is another factor supporting the view that the impugned CPP provisions do not violate essential human dignity. Parliament’s intent in enacting a survivor’s pension scheme with benefits allocated according to age appears to have been to allocate funds to those persons whose ability to overcome need was weakest. The concern was to enhance personal dignity and freedom by ensuring a basic level of long-term financial security to persons whose personal situation makes them unable to achieve this goal which is so important to life and dignity. This legislative purpose accords well with the fundamental purposes of s. 15(1) of the Charter .
Legislation need not always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter . The determination of whether a legislative provision infringes a claimant’s dignity must in every case be considered in the full context of the claim. In the present case, the appellant is more advantaged by virtue of her young age. The legislation has an egalitarian purpose and function and its provisions correspond to a very large degree with the needs and circumstances of the persons whom the legislation targets. No other factors suggest that the appellant’s dignity as a younger adult is demeaned by the legislation, either in its purpose or in its effects.
The fact that the legislation is premised upon informed statistical generalizations which may not correspond perfectly with the long-term financial need of all surviving spouses does not affect the ultimate conclusion that the legislation is consonant with the human dignity and freedom of the appellant. Parliament is entitled, under these limited circumstances at least, to premise remedial legislation upon informed generalizations without running afoul of s. 15(1) of the Charter and being required to justify its position under s. 1 . Under other circumstances a more precise correspondence would undoubtedly be required in order to comply with s. 15(1) . In particular, a more precise correspondence will likely be important where the individual or group which is excluded by the legislation is already disadvantaged or vulnerable within Canadian society. The availability of the pension to the appellant at age 65 strengthens the conclusion that the law does not reflect a view of the appellant that suggests she is undeserving or less worthy as a person, only that the distribution of the benefit to her will be delayed until she is at a different point in her life cycle, when she reaches retirement age.
Cases Cited
Considered: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Vriend v. Alberta, [1998] 1 S.C.R. 493; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; referred to: R. v. Swain, [1991] 1 S.C.R. 933; R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906; Symes v. Canada, [1993] 4 S.C.R. 695; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Haig v. Canada, [1993] 2 S.C.R. 995; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Kask v. Shimizu, [1986] 4 W.W.R. 154; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Moge v. Moge, [1992] 3 S.C.R. 813.
Statutes and Regulations Cited
Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 44(1) (d) [am. c. 30 (2nd Supp.), s. 13 ], 58(1)(a) [am. idem., s. 26 ].
Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) , (2) .
Authors Cited
Canada. House of Commons Debates, vol. VI, 2nd Sess., 26th Parl., August 10, 1964, p. 6636.
Canada. House of Commons Debates, vol. IX, 2nd Sess., 26th Parl., November 16, 1964, p. 10122.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
APPEAL from a judgment of the Federal Court of Appeal (1996), 135 D.L.R. (4th) 293, 196 N.R. 73, [1996] F.C.J. No. 511 (QL), dismissing an application to set aside a decision of the Pension Appeals Board (1995), C.E.B. & P.G.R. 8574, finding certain age distinctions in the Canada Pension Plan to be constitutional. Appeal dismissed.
James Sayre, for the appellant.
Susan L. Van Der Hout, Virginia McRae and Julie Lalonde-Goldenberg, for the respondent.
The judgment of the Court was delivered by
//Iacobucci J.//
IACOBUCCI J.--
I. Introduction and Overview
1 This appeal concerns the constitutionality of ss. 44(1) (d) and 58 of the Canada Pension Plan, R.S.C., 1985, c. C-8 , which draw distinctions on the basis of age with regard to entitlement to survivor's pensions. The issue is whether the provisions infringe s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that they discriminate against persons under the age of 45 on the basis of age and, if so, whether the infringement is justified under s. 1 of the Charter . In my view, a purposive reading and application of s. 15(1) results in the conclusion that the appellant has not established discrimination within the meaning of the Charter .
2 Section 15 of the Charter guarantees to every individual the right to equal treatment by the state without discrimination. It is perhaps the Charter ’s most conceptually difficult provision. In this Court’s first s. 15 case, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R 143, at p. 164, McIntyre J. noted that, as embodied in s. 15(1) of the Charter , the concept of equality is “an elusive concept”, and that “more than any of the other rights and freedoms guaranteed in the Charter , it lacks precise definition”. Part of the difficulty in defining the concept of equality stems from its exalted status. The quest for equality expresses some of humanity’s highest ideals and aspirations, which are by their nature abstract and subject to differing articulations. The challenge for the judiciary in interpreting and applying s. 15(1) of the Charter is to transform these ideals and aspirations into practice in a manner which is meaningful to Canadians and which accords with the purpose of the provision.
3 In Andrews, McIntyre J., who delivered the unanimous reasons of the Court on the issue of the proper approach to s. 15(1) , cautioned at p. 168 that it would be inappropriate to attempt to confine analysis under s. 15(1) to a “fixed and limited formula”. This sentiment has been echoed in subsequent decisions: see, e.g., R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1326, per Wilson J., and R. v. Swain, [1991] 1 S.C.R. 933, at pp. 991-92, per Lamer C.J. McIntyre J. advocated a contextual and purposive approach to discrimination analysis under the Charter , and contrasted this preferred approach to the rigid formalism which had characterized this Court’s approach under the equality provision in the Canadian Bill of Rights. As he suggested, a flexible and nuanced analysis under s. 15(1) is preferable because it permits evolution and adaptation of equality analysis over time in order to accommodate new or different understandings of equality as well as new issues raised by varying fact situations. Such an approach also accords far better with the strong remedial purpose of s. 15 , permitting the realization of that purpose.
4 Indeed, in the brief history of this Court’s interpretation of s. 15(1) of the Charter , there have been several important substantive developments in equality law, relating to, among other things, the meaning of adverse effects discrimination, the role of context in identifying discrimination more generally, and the indicia of an analogous ground. All of these developments have been guided by the Court’s evolving understanding of the purpose of equality protection under s. 15(1) . All have augmented and enriched anti-discrimination jurisprudence under the Charter .
5 Throughout these developments, although there have been differences of opinion among the members of this Court as to the appropriate interpretation of s. 15(1) , I believe it is fair to say that there has been and continues to be general consensus regarding the basic principles relating to the purpose of s. 15(1) and the proper approach to equality analysis. In my view, the present case is a useful juncture at which to summarize and comment upon these basic principles, in order to provide a set of guidelines for courts that are called upon to analyze a discrimination claim under the Charter .
6 In accordance with McIntyre J.’s caution in Andrews, supra, I think it is sensible to articulate the basic principles under s. 15(1) as guidelines for analysis, and not as a rigid test which might risk being mechanically applied. Equality analysis under the Charter must be purposive and contextual. The guidelines which I review below are just that -- points of reference which are designed to assist a court in identifying the relevant contextual factors in a particular discrimination claim, and in evaluating the effect of those factors in light of the purpose of s. 15(1) .
7 The analysis in these reasons proceeds from the general to the more specific. I begin, after describing the background of the case, with a review of general principles regarding the proper approach to be followed in analyzing a discrimination claim. This portion of the reasons is concerned with outlining elements or stages of analysis, whose content and application I then develop. The second portion of my analysis is a discussion of the basic principles which this Court has articulated in past jurisprudence regarding the purpose of s. 15(1) , and the fundamentally purposive nature of each stage of analysis under the provision. Next, on the basis of previous cases, I review some of the contextual factors which may assist a court in determining whether the purpose of s. 15(1) has been engaged within the context of a particular case. A summary of the elements of a discrimination claim, the purpose of s. 15(1) , and the contextual factors then follows. Finally, I apply the principles articulated in this analysis to the case at bar.
II. Background
A. The Legislation
8 The Canada Pension Plan (the “CPP ”) is a compulsory social insurance scheme which was enacted in 1965 in order to provide contributors and their families with reasonable minimum levels of income upon the retirement, disability or death of the wage earner: see House of Commons Debates, vol. VI, 2nd Sess., 26th Parl., August 10, 1964, at p. 6636. Among the benefits available under the CPP is the survivor’s pension. This monthly benefit is paid to a surviving spouse whose deceased partner has made sufficient contributions to the CPP , and who meets the eligibility criteria specified in s. 44(1) (d), namely, an age threshold, responsibility for dependent children or disability.
9 A claimant who is over the age of 45 at the time of the contributor’s death, or is maintaining dependent children of the deceased contributor, or is (or becomes) disabled, is entitled to receive the survivor’s pension at the full rate. However, s. 58 gradually reduces that pension for able-bodied surviving spouses without dependent children who are between the ages of 35 and 45 by 1/120th of the full rate for each month that the claimant’s age is less than 45 years at the time of the contributor’s death. Pursuant to s. 44(1) (d), unless they should become disabled, able-bodied surviving spouses without dependent children who are under 35 at the time of the death of the contributor are precluded from receiving a survivor’s pension until they reach the age of 65.
B. Facts
10 The appellant, Nancy Law, married Jason Law in 1980. Mr. Law died in 1991, at the age of 50, having contributed to the CPP for 22 years. At the time of his death, the appellant was 30 years old. Prior to Mr. Law’s death, the couple had co-owned a small business. The appellant was responsible for business operations and her husband had the requisite technical knowledge and expertise. The business failed soon after Mr. Law’s death.
11 The appellant applied to receive survivor’s benefits under the CPP . Her husband had made sufficient contributions under the CPP such that she would qualify for survivor benefits if she came within the class of persons entitled to receive them. However, her application was refused because she was under 35 years of age at the time of her husband’s death, she was not disabled, and she did not have dependent children.
12 The appellant appealed this decision to the Minister of National Health and Welfare, who rejected the appeal in May, 1992. She then appealed to the Pension Plan Review Tribunal, arguing that the age distinctions in ss. 44(1) (d) and 58 of the CPP discriminate against her on the basis of age contrary to s. 15(1) of the Charter . The tribunal found that the legislation discriminates against those who, at the time of the contributor’s death, have not reached age 35, have no dependent children and are not disabled. However, the tribunal was unable to reach a consensus regarding s. 1 of the Charter . The majority concluded that the discrimination was justified under s. 1 and, although a more precise test of need could have been crafted, the measures adopted were a reasonable attempt by Parliament to achieve the objective of the CPP . The dissenting member of the tribunal found that the age distinctions in the impugned provisions were arbitrary and that Parliament could have targeted needy dependents without discrimination by legislating a test to determine need.
13 The appellant then appealed to the Pension Appeals Board, which, in a trial de novo, concluded that the impugned age distinctions do not violate the appellant’s equality rights. The majority of the board also found that, even if the distinctions did infringe s. 15(1) of the Charter , they would be justified under s. 1 . A subsequent appeal to the Federal Court of Appeal was dismissed largely for the reasons of the Pension Appeals Board.
III. Relevant Statutory and Constitutional Provisions
14 Canada Pension Plan, R.S.C., 1985, c. C-8
44. (1) Subject to this Part,
. . .
(d) a survivor’s pension shall be paid to the surviving spouse, as determined pursuant to this Act, of a deceased contributor who has made contributions for not less than the minimum qualifying period, if the surviving spouse
(i) has reached sixty-five years of age, or
(ii) in the case of a surviving spouse who has not reached sixty-five years of age,
(A) had at the time of the death of the contributor reached thirty-five years of age,
(B) was at the time of the death of the contributor a surviving spouse with dependent children, or
(C) is disabled;
. . .
58. (1) Subject to this section, a survivor’s pension payable to the surviving spouse of a contributor is a basic monthly amount as follows:
(a) in the case of a surviving spouse who has not reached sixty-five years of age and to whom no retirement pension is payable under this Act or a provincial pension plan, a basic monthly amount consisting of
(i) a flat rate benefit, calculated as provided in subsection (1.1), and
(ii) 37½ per cent of the amount of the contributor’s retirement pension, calculated as provided in subsection (3),
reduced, unless the surviving spouse was at the time of the death of the contributor a surviving spouse with dependent children or unless he is disabled, by 1/120 for each month by which the age of the surviving spouse at the time of the death of the contributor is less than forty-five years, and reduced, if at any time after the death of the contributor the surviving spouse ceases to be
(iii) a surviving spouse with dependent children and is not at that time disabled, or
(iv) disabled and is not at that time a surviving spouse with dependent children,
by 1/120 for each month by which the age of the surviving spouse at that time is less than forty-five years; . . .
Canadian Charter of Rights and Freedoms
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.
IV. Judicial History
A. Pension Appeals Board (1995), C.E.B. & P.G.R. 8574
(1) Rutherford J., Dureault J. concurring
15 Following an extensive extract from the respondent’s expert report, adduced at the trial de novo before the Pension Appeals Board, Rutherford J. stated that, although many laws create legal distinctions, not all amount to discrimination within the meaning of s. 15(1) of the Charter . He went on to find that although age is a factor in determining eligibility for survivor’s benefits under the CPP , it is not the sole criterion. Rather, it is a combination of age, healthful employability, and freedom from the responsibility of dependent children which may lead to exclusion from benefits. Moreover, he held that, to the extent that age is a factor in the denial of benefits, ss. 44(1) (d)(ii)(A) and 58 do not create the kind of distinction that has been characterized as “discrimination” in the constitutional sense.
16 Rutherford J. noted that the Supreme Court of Canada has used s. 15(1) of the Charter as a means of protecting discrete and insular minorities and of shielding vulnerable groups against stigmatization, stereotyping, and prejudice. Quoting with approval from the remarks of Wilson J. in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, he found that none of the evidence in the present case suggested that the appellant is a member of a group that suffers “discrimination” in Charter terms. Nor, he observed, did the evidence suggest that able-bodied and young surviving spouses without responsibility for children are treated differently, on the basis of an irrelevant personal characteristic, from those who do receive survivor’s pension benefits. Rather, Rutherford J. found that age is a very relevant characteristic to be considered in determining relative need for survivor’s benefits. He also noted that the appellant is not a member of a traditionally disadvantaged group, an insular minority or a segment of society that is or may be stigmatized, stereotyped or subjected to prejudice. Accordingly, he concluded that, even though the impugned provisions draw a distinction based on age, this does not constitute discrimination within the meaning of s. 15(1) of the Charter .
17 Although it was not necessary to do so in order to dispose of the appeal, Rutherford J. went on to find that even if the impugned provisions of the CPP did infringe s. 15(1) of the Charter , the infringement would be justified under s. 1 of the Charter . He acknowledged that the extension of benefits to widowers and the elimination of remarriage as a bar to continuing survivor’s benefits had diluted the original legislative objective, making it difficult for ss. 44(1) (d)(ii)(A) and 58 to pass the justificatory test under s. 1 of the Charter without being found vulnerable on one point or another. However, in his view, the complexity of the CPP , its status as an over-arching federal-provincial benefits system, and its onerous amendment requirements justify deference to Parliament’s choice of measures.
(2) Angers J.A.
18 Angers J.A. agreed with his colleagues’ reasons regarding discrimination on the basis of age, but preferred not to comment on the effect of s. 1 of the Charter .
B. Federal Court of Appeal (1996), 135 D.L.R. (4th) 293
19 Isaac C.J., delivering judgment on behalf of a unanimous court, was not convinced that the Pension Appeals Board had committed a reviewable error. He stated that the court substantially agreed with the reasons of the board that neither s. 44(1) (d) nor s. 58 of the CPP infringes upon the appellant’s equality rights guaranteed by s. 15(1) of the Charter . The Court of Appeal was also in substantial agreement with the majority opinion that, even if those provisions do infringe s. 15(1) of the Charter , they constitute a reasonable limit under s. 1 of the Charter . Accordingly, the appeal was dismissed.
V. Issues
20 By order of the Chief Justice dated March 26, 1997, the following constitutional questions were stated for this Court’s consideration:
1. Do ss. 44(1)(d) and 58 of the Canada Pension Plan, R.S.C., 1985, c. C-8 , infringe on s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that they discriminate against widows and widowers under the age of 45 on the basis of age?
2. If so, can this infringement be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?
VI. Analysis
A. Approach to s. 15(1)
21 Subsection 15(1) of the Charter states as follows:
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.
22 On its face, s. 15(1) guarantees the equal treatment of individuals by the state without discrimination. The concepts of “equality” and “discrimination” lie at the heart of the provision. What do these concepts mean, and how are they to be established? An excellent starting point in answering these questions is the Andrews decision, supra, which articulates many of the basic principles which continue to guide s. 15(1) analysis to the present day.
(1) Andrews Revisited
23 McIntyre J. in Andrews adopted an approach to s. 15(1) which focuses upon three central elements: (1) whether a law imposes differential treatment between the claimant and others; (2) whether an enumerated or analogous ground of discrimination is the basis for the differential treatment; and (3) whether the law in question has a “discriminatory” purpose or effect. In these reasons, for the sake of convenience, I will refer only to discriminatory laws, and not to the various other forms of potentially discriminatory state action. The first element -- differential treatment -- relates to, but is not determinative of, the issue of equality for the purpose of s. 15(1) . The second and third elements in McIntyre J.’s approach determine whether the differential treatment in question constitutes discrimination within the meaning of s. 15(1) of the Charter . In his detailed discussion of these three elements, McIntyre J. made clear that the analysis of each element is to be