Date:
20130618
Docket:
T-1999-11
Citation:
2013 FC 683
Ottawa, Ontario,
June 18, 2013
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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SHIRLEY NASH
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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and
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MARIE-ANNE VALLÉE
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Mise-en-cause
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review of a decision rendered by the Public
Service Pension Centre (the Pension Centre) of Public Works and Government
Services Canada to apportion a survivor allowance between Ms. Shirley Nash (the
Applicant) and Ms. Marie-Anne Vallée (the Mise-en-cause), based on their
respective years of cohabitation with the deceased contributor, Mr. Barry Myers
(Mr. Myers), in accordance with the Public Service Superannuation Act, RSC,
1985, c P-36 [PSSA].
[2]
The
Applicant is also challenging the constitutionality of subsections 3(1), 25(4),
25(4.1) 25(10) and 25(11) of the PSSA on the grounds that they infringe
subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part
I of the Constitution Act, 1982,
being Schedule B to the Canada Act
1982 (UK), 1982, c 11 [Charter].
[3]
For
the reasons that follow this application for judicial review and the
constitutional challenge are dismissed.
II. The facts
[4]
Mr.
Myers was a federal public servant and consequently deemed a “contributor” of
the Public Service Pension Fund under the PSSA.
[5]
The
Mise-en-cause married Mr. Myers in 1961 and, despite having separated many
years earlier, remained legally married to him until his death on February 1,
2009.
[6]
On
June 20, 2002, the Applicant and Mr. Myers were married believing the divorce
between Mr. Myers and the Mise-en-cause had been finalized earlier in 2002.
[7]
On
March 5, 2010, the Superior Court of Quebec in Droit de la famille — 10456,
2010 QCCS 849 [10456], declared the divorce between Mr. Myers and the
Mise-en-cause null and found that their marriage was only dissolved with Mr.
Myers’ death on February 1, 2009. As a result, the Court also declared the
marriage between the Applicant and Mr. Myers null.
[8]
The
Applicant filed a motion for putative effects pursuant to section 382 of the Civil
Code of Québec [CCQ]. On February 14, 2012, the Superior Court of Quebec in Droit
de la famille — 12246, 2012 QCCS 489
[12246] found that the Applicant married Mr. Myers in good faith and
granted the motion for the putative effects of the marriage including the
liquidation of the couple’s patrimonial rights. The Court, however, ordered
that survivor benefits under the Quebec Pension Plan (Régime des Rentes
du Québec)
be paid exclusively to the Mise-en-cause.
[9]
The
Court of Appeal, in its judgment dated March 18, 2013, allowed the appeal filed
by Shirley Nash in part and struck paragraphs 73 ,74 and 75 of Justice Piché’s
decision in 12246 cited above, for want of jurisdiction and reaffirmed
that Shirley Nash, the Applicant, married Mr. Myers in good faith on June 20,
2002, and was entitled to both the putative effects of the marriage and the
liquidation of the couple’s patrimonial rights pursuant to the CCQ;
[10]
Both
the Applicant and the Mise-en-cause applied to the Pension Centre for a
survivor allowance under the PSSA. On April 12, 2011, the Pension Centre
wrote to the Applicant and the Mise-en-cause to inform them that, pursuant to
subsections 25(10) and 25(11) of the PSSA, the survivor allowance would
be apportioned between them based on the number of years each of them lived
with Mr. Myers. The Pension Centre also requested that both the Applicant and
the Mise-en-cause provide evidence establishing their respective periods of
cohabitation with Mr. Myers.
[11]
On
May 30, 2011, the Applicant wrote to the Pension Centre specifying that she
would not be submitting evidence of cohabitation with Mr. Myers because she was
his wife and believed to be entitled to receive the entire survivor allowance.
[12]
The
Pension Centre notified the Applicant that she wouldn’t be considered for any
apportionment of the survivor allowance if she failed to submit the evidence
requested. The Applicant then complied on August 2, 2011, and sent evidence of
her years of cohabitation.
[13]
After
reviewing the evidence submitted by the Applicant and the Mise-en-cause, the
Pension Centre decided that the survivor allowance (approximately $ 2 567.77
CAD per month) be apportioned between the survivors on a 21: 14 ratio in favour
of the Mise-en-cause. The Applicant and Mise-en-cause were informed of the
decision by letters dated December 16, 2011 and December 20, 2011 respectively.
III. Legislation
[14]
The
applicable sections of the Public Service Superannuation Act, RSC, 1985,
c P-36 and of the Canadian Charter of Rights and Freedoms, Part
I of the Constitution Act, 1982,
being Schedule B to the Canada Act
1982 (UK), 1982, c 11 are appended to
this decision.
IV. Issues
and standard of review
A. Issues
1. Did
the Pension Centre err in apportioning the survivor allowance between the
Applicant and the Mise-en-cause?
2. Do
subsections 3(1), 25(4), 25(4.1), 25(10) and 25(11) of the PSSA violate
subsection 15(1) of the Charter in a manner not justified by section 1?
B. Standard
of review
[15]
The
first issue involves the application of the law to a set of facts and is
therefore a question of mixed fact and law. The applicable standard of review
is reasonableness (see Public Service Alliance of Canada v Canada (Attorney General), 2008 FC 474 at para 18; Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47 [Dunsmuir]).
[16]
The
Charter challenge is raised by the Applicant for the first time in this
judicial review. The Tribunal’s decision did not deal with the Charter
challenge and consequently, there is no applicable standard of review (see Warman
v Tremaine, 2008 FC 1032 at para 13).
V. Parties’
submissions
A. Applicant’s
submissions
[17]
The
Applicant submits that the Pension Centre erred in splitting the survivor
allowance under subsection 25(10) of the PSSA because it was outside of
the Pension Centre’s jurisdiction to determine the validity of the Applicant’s
marriage to Mr. Myers. The Pension Centre should have relied on the marriage
certificate between the Applicant and Mr. Myers dated June 20, 2002 and the
decision in 12246, cited above and not divide the survivor pension
benefits between the Applicant and the Mise-en-cause. The Applicant asserts
that she is the only survivor spouse of Mr. Myers and, as a result, subsection
25(10) of the PSSA was not relevant in attributing the survivor pension
benefits.
[18]
The
Applicant also argues that the Pension Centre failed to observe the principles
of natural justice after it was notified that the she was bringing a motion for
putative effects before the Superior Court of Quebec. According to the
Applicant, the Pension Centre should have waited until a judgment had been
rendered on that motion. By failing to do so, the Pension Centre prevented the
Applicant from presenting all of her evidence. The Applicant submits that the
Pension Centre “should have suspended [its] decision in order to have complete
proof before rendering a decision” (Applicant’s Memorandum, para 19).
[19]
The
Applicant also contends that subsections 3(1), 25(4.1), 25(10) and 25(11) of
the PSSA are unconstitutional because they violate section 15 of the Charter
as these provisions create a distinction based on marital status. According to
the Applicant, the aforementioned subsections make “a distinction between a
survivor spouse that is legally married and a survivor spouse whose effects
were given by a Judgement as the putative spouse (spouse in good faith)”
(Applicant’s Memorandum, para 12). The Applicant submits that the challenged
provisions are silent on the possibility of receiving survivor pension benefits
when a spouse is declared a putative spouse (Applicant’s Memorandum, para 10).
[20]
The
Applicant also argues that the decision from the Pension Centre is inequitable
because despite being entitled to all the effects of a putative marriage,
pursuant to the decision of the Quebec Court of Appeal, she is being treated as
a common law spouse and consequently, only entitled to 40% of the survivor
benefits contrary to Mr. Myers’ wishes.
B. Respondent’s
submissions
[21]
The
Respondent submits that the Applicant’s contention that she should be regarded
as Mr. Myers’ only married spouse under subsection 3(1) of the PSSA
“simply because she was given the putative effects of marriage would result in
the disentitlement of the lawful wife of the contributor, the Mise-en-cause”
(Respondent’s Memorandum, para 39).
[22]
The
Respondent contends that the rights of a putative spouse are subject to those
of a lawful married spouse. Such was the conclusion of the Supreme Court of
Canada in Stephens v Falchi, [1938] S.C.R. 354, where at page 368, Chief
Justice Duff found the following:
“My view summarized in a word is that the marriage
between the respondent and the putative wife, having been a marriage in good
faith, a putative marriage in the sense of the Italian law as well as of the
law of Quebec, the civil effects of which the putative husband is entitled to
the benefit do not necessarily rest upon the hypothesis that he acquired the
status of husband of Marguerite Claire Stephens, or that she acquired his
nationality or his domicile, but simply upon the fact that the marriage was
entered into in good faith a fact which has certain juridical consequences.
These consequences would appear (Berthiaume v. Dastous)[15], to include
quoad property such consequences of a real marriage as are consistent with the
nonexistence of a real marriage and, in the case of a bigamous marriage,
such as are consistent with the continued existence and recognition of the
status and rights of the lawful husband arising out of the lawful marriage.”
[Emphasis added by the Respondent]
[23]
The
Respondent summarizes the Applicant’s claim as “[i]n essence, […] asking this
Court to confer more legal rights to a “putative spouse” whose marriage is null
than to a lawful married spouse” (Respondent’s Memorandum, para 43). In light
of the above, the Respondent concludes that the Pension Centre could not award
the full survivor allowance to the Applicant on the basis that she was the only
married spouse of Mr. Myers under subsection 3(1) of the PSSA.
[24]
Regarding
the Applicant’s Charter challenge, the Respondent argues that the
Applicant’s subsection 15(1) claim fails to pass the first step of the test
reaffirmed by the Supreme Court of Canada in Withler v Canada (Attorney
General), [2011] 1 S.C.R. 396 [Withler]. In order for the Applicant’s
challenge to succeed, she must show that: 1) the PSSA provisions create
a distinction based on an enumerated or analogous ground; and 2) the
distinction creates a disadvantage by perpetuating prejudice or stereotyping (see
Withler, cited above, at para 30). The Respondent submits that the
alleged distinction between a legally married spouse and a putative spouse) is
not an analogous ground of discrimination within the meaning of subsection
15(1) of the Charter.
[25]
While
the Respondent acknowledges that marital status is an analogous ground of
discrimination, that ground was used to describe the legal distinction between
married and common law spouses. The Supreme Court in Miron v Trudel,
[1995] 2 S.C.R. 418 [Miron], found that marital status was an analogous
ground using, among other reasons, the following indicators: 1) discrimination
on the basis of marital status impacts an individual’s sense of worth and
dignity in the sense that it touches a person’s “freedom to live life with the
mate of one's choice in the fashion of one's choice” (Miron, cited
above, at para 151); 2) “[p]ersons involved in an unmarried relationship
constitute an historically disadvantaged group” (Miron at para 152); and
3) “marital status often lies beyond the individual's effective control” (Miron
at para 153) and is, in that sense, an immutable characteristic.
[26]
The
Respondent maintains that, unlike common law spouses, putative spouses do not
constitute a historically disadvantaged group, nor is that status an immutable
characteristic. Section 382 of the CCQ has a remedial purpose, it does not
create a disadvantage, nor does it create a legal distinction which violates
the dignity and freedom of individuals. Finally, the treatment the Applicant
received under the PSSA was not due to the status of her relationship
with Mr. Myers but to the continued validity of the Mise-en-cause’s marriage to
him.
[27]
The
Respondent submits that, in this context, a subsection 15(1) claim “should
focus on determining whether the PSSA creates a distinction between
married spouses and cohabiting spouses” (Respondent’s Memorandum, para 57). The
Respondent argues that the PSSA does not create such a distinction in
treatment based on marital status. Under the PSSA, married and
cohabitating partners receive equal treatment. For example, in cases like the
one at bar where a married and a cohabitating spouse co-exist at the time of
the contributor’s death, each spouse is awarded a portion of the survivor
allowance based on the number of years they respectively lived with the
deceased. Indeed, had Mr. Myers and the Mise-en-cause been divorced at the time
of Mr. Myers’ death, the Applicant would have been entitled to the entire
survivor allowance. The Respondent concludes that the impugned provisions do
not create a distinction based on marital status and the Applicant is not the
subject of discrimination.
[28]
The
Respondent submits in the alternative that should the Court find that the
impugned provisions do create a distinction, then that distinction is not
discriminatory because the provisions do not serve to perpetuate a prejudice
against or reinforce stereotypes of cohabitating spouses. The apportionment of
the survivor pension between a married and a cohabitating spouse is not meant
to imply that the latter’s relationship is less worthy of recognition. The
provisions simply address the fact that both spouses may be economically
dependent on the contributor at the time of his death. Indeed, both the Supreme
Court and the Federal Court of Appeal have recognized that, barring a
formalized separation and related financial settlement, married but separated
spouses still owe each other financial obligations (see Hodge v Canada
(Minister of Human Resources Development), 2004 SCC 65 at para 41; Roy v
Canada, 2003 FCA 320 at paras 81-83).
[29]
While
the Respondent recognizes that, in this particular situation, it is
understandable that the Applicant takes issue with the apportionment of the
survivor allowance, the Supreme Court of Canada has found that “it is in the
nature of a pension benefits scheme that it must balance different claimants’
interests, and cannot be perfectly tailored to every individual’s personal
circumstances” (Withler, cited above, at para 73).
[30]
Finally,
should this Court find that the impugned provisions violate subsection 15(1),
the Respondent submits that they are justified under section 1 of the Charter.
C. Mise-en-cause’s
submissions
[31]
The
Mise-en-cause submits that the Pension Centre’s decision to apportion the
survivor pension between the Applicant and the Mise-en-cause pursuant to subsection
25(10) of the PSSA was reasonable. Both the Mise-en-cause and the
Applicant are survivors as defined by subsections 3(1) and 25(4) of the PSSA.
The Pension Centre correctly applied the PSSA to the facts of this case
and there is no reason for the Court to intervene.
[32]
The
Mise-en-cause also submits that even if the Applicant was recognized as a
married spouse under paragraph 3(1)(a) of the PSSA, the survivor
pension would still have to be apportioned in accordance with subsection 25(1).
Mr. Myers would then have been married to two people at the time of his death
and the survivor pension would be apportioned between them. The result would
not change. Ignoring, as the Applicant suggests, the Superior Court of Quebec’s
decision in 10456 cited above, declaring the divorce between Mr. Myers
and the Mise-en-cause null would have rendered the Pension Centre’s decision
unreasonable.
[33]
On
the Applicant’s Charter challenge, the Mise-en-cause argues that the
impugned provisions do not subject the Applicant to different treatment due to
her marital status. On the contrary, they ensure that she receives the same
treatment as the Mise-en-cause, namely, a right to a portion of the survivor
pension based on the number of years of cohabitation with Mr. Myers.
[34]
The
Mise-en-cause submits the PSSA does not create any discriminatory
distinction between married and common law spouses and that the Applicant has
failed to demonstrate any such distinction disadvantaged her. The Mise-en-cause
insists that it is the existence of her marriage to Mr. Myers, and not the PSSA,
that is the source of the Applicant’s problems. Declaring the impugned
provisions unconstitutional would not solve the Applicant’s problem but would
risk removing the right to receive a portion of the survivor pension from
future cohabitating spouses.
VI. Analysis
1. Did
the Pension Centre err in apportioning the survivor allowance between the
Applicant and the Mise-en-cause?
[35]
The
Court finds that the Pension Centre’s decision to apportion the survivor
allowance between the Applicant and the Mise-en-cause pursuant to subsection
25(10) was reasonable and sees no reason to intervene.
[36]
The
Superior Court of Quebec, in 10456 cited above, determined that the
Mise-en-cause was Mr. Myer’s lawful wife at the time of his death and is,
therefore, a survivor under paragraph 3(1)(a) of the PSSA. The
Applicant fulfills the criteria of subsection 25(4) and is therefore a survivor
pursuant to paragraph 3(1)(b) of the PSSA. Given that Mr. Myers
had two survivors, the Pension Centre correctly applied subsection 25(10) of
the PSSA and divided the survivor allowance based on the number of years
each survivor cohabitated with him.
[37]
The
fact that the Applicant received a judgment granting her the putative effects
of marriage does not alter the Mise-en-cause’s legal status, she qualifies as a
survivor under paragraph 3(1)(a) of the PSSA. The Pension Centre
correctly applied its legislation to the facts of the case. The Pension Centre
did not have the power or discretion to ignore the still valid marriage between
the Mise-en-cause and Mr. Myers because of the unusual circumstances of this
case.
[38]
The
Applicant’s claim that the Pension Centre failed to observe the principles of
natural justice by not waiting for the judgment of the Superior Court of Quebec on the putative effects to come down before rendering its decision is without merit.
The putative effects decision of the Superior Court had no bearing on the
Pension Centre’s. The principles of natural justice did not require it to wait.
[39]
While
the situation in the present case is unfortunate, the Pension Centre’s decision
“falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir, cited above, at para 47).
2. Do
subsections 3(1), 25(4), 25(4.1), 25(10) and 25(11) of the PSSA violate
subsection 15(1) of the Charter in a manner not justified under section 1?
[40]
For
the reasons that follow, the Court finds that the impugned provisions are not
discriminatory and do not violate the subsection.
[41]
The
Supreme Court of Canada recently clarified the test to be applied for
subsection 15(1) challenges in Quebec (Attorney General) v A, 2013 SCC 5
[A] by reconfirming its commitment to the test set out in Andrews v
Law Society of British Columbia, [1989] 1 S.C.R. 143 [Andrews] and
summarized it as follows at paragraph 323:
“In sum, the claimant’s burden under the Andrews
test is to show that the government has made a distinction based on an
enumerated or analogous ground and that the distinction’s impact on the
individual or group perpetuates disadvantage. If this has been demonstrated,
the burden shifts to the government to justify the reasonableness of the
distinction under s. 1. As McIntyre J. explained, “any justification, any
consideration of the reasonableness of the enactment; indeed, any consideration
of factors which could justify the discrimination and support the constitutionality
of the impugned enactment would take place under s. 1” (p. 182)”.
[42]
Writing
for the majority of the Court on subsection 15(1), Justice Abella stressed that
the decisions in R. v Kapp, [2008] 2 S.C.R. 483 and Withler, cited
above, did not establish “an additional requirement on section 15 claimants to
prove that a distinction will perpetuate prejudicial or stereotypical attitudes
towards them” (A, cited above, at para 327).
[43]
The
Court’s task in this case, then, is to verify whether: 1) the impugned
provisions impose a distinct treatment based on an enumerated or analogous
ground; and 2) whether that distinct treatment’s impact on the individual or
group perpetuates a disadvantage.
[44]
The
Applicant contends that the impugned provisions of the PSSA violate subsection
15(1) of the Charter by imposing a distinct treatment on the basis of
marital status. More specifically, the provisions treat married and putative
spouses differently. The PSSA is under-inclusive in that it does not
mention whether putative spouses can be considered survivors under paragraph
3(1)(a).
[45]
Insofar
as the Applicant is contending that the impugned provisions are discriminatory
because they do not give priority to putative spouses over legally married
spouses, her claim has no basis. A putative spouse will always co-exist with a
legally married spouse until the situation is rectified. Subsection 15(1)
ensures the equal treatment of similarly situated groups. There is no
discrimination in not assigning more rights to the putative spouse than to the
lawful spouse. The Applicant is asking the Court to deprive the Mise-en-cause
of her legal rights, something this Court cannot do.
[46]
The
Respondent argues that because the analogous ground of marital status was
recognized based on factors specifically related to common law spouses it
cannot be invoked by other marital status groups (e.g. putative spouses) who do
not share the same characteristics. As compelling as the Respondent’s argument
is, it has already been rejected by the Supreme Court of Canada. The same
argument was made in Roy v Canada, 2002 FCT 233 (CanLII), [2002]
4 FC 451 in an attempt to prevent divorced spouses from invoking marital
status. At paragraph 61 of that decision, Justice McKeown noted that the
argument had already been rejected by the Supreme Court of Canada:
61 The defendant argues that marital status is not
necessarily an analogous ground, and that the fact that unmarried cohabitants
comprise a group identified as an analogous ground in Miron does not
mean that all of the other possible marital status groups, which could include
single, married, or widowed people, are automatically entitled to subsection
15(1) protection. I disagree with this submission. In Collins, Rothstein
J. relies on the decision in Corbiere v. Canada (Minister of Indian and
Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203, which held
that once something is found to be an analogous ground, it is so in all cases.
There McLachlin and Bastarache JJ. state at paragraph 8:
Just as we do not speak of enumerated grounds
existing in one circumstance and not another, we should not speak of analogous
grounds existing in one circumstance and not another. The enumerated and
analogous grounds stand as constant markers of suspect decision making or
potential discrimination. What varies is whether they amount to discrimination
in the particular circumstances of the case.
We therefore disagree with the view that a marker of
discrimination can change from case to case, depending on the government action
challenged. It seems to us that it is not the ground that varies from
case to case, but the determination of whether a distinction on the basis of a
constitutionally cognizable ground is discriminatory. Sex will always be
a ground, although sex-based legislative distinctions may not always be discriminatory.
[Emphasis added]
Since marital status was found to be a ground in Miron,
supra, I find that it is a ground in this case as well. The real issue
is whether it is discriminatory, which is addressed in the third stage of the
analysis.
[47]
Since
a putative spouse (or “spouse in good faith”) status is a marital status, the
Court accepts that it is an analogous ground in this case. The Court accepts
that the PSSA imposes a distinction between putative and married spouses
by not including the former in the definition of a survivor. The Court notes
that several provincial pension related statutes recognize putative or good
faith spouses as a “spouse” in their acts. For example, the definition of
spouse in paragraph 2(1)(m) of the Teachers' Pensions Act, SNL
1991, c 17 is as follows
2(1)
. . .
(m) "spouse" means a person who
(i) is married to the teacher or pensioner,
(ii) is married to the teacher or pensioner by a
marriage that is voidable and has not been voided by a judgment of nullity, or
(iii) has gone through a form of a marriage with
the teacher or pensioner, in good faith, that is void and is cohabiting or has
cohabited with the teacher or pensioner within the preceding year;
[48]
Not
all putative spouses necessarily fall into paragraph 3(1)(b) of the PSSA.
That is to say, it is theoretically possible for a putative spouse to not have
lived with a contributor for a year prior to his death (a “non-3(1)(b)
putative spouse”). In such cases, a putative spouse could suffer a disadvantage
by not being able to receive or share in their putative spouse’s survivor
allowance under the PSSA.
[49]
The
problem for the Applicant in the present case, however, is that she is not a
non-3(1)(b) putative spouse. The Applicant lacks standing to bring this
challenge because she is essentially claiming a breach of the Charter
rights of others (i.e. non-3(1)(b) putative spouses). As noted above,
the Applicant was recognized as a survivor under paragraph 3(1)(b) and
her rights are not being breached by the purported “under-inclusiveness” of the
PSSA. If the impugned sections of the PSSA were found to violate
subsection 15(1) in a manner that is unjustified by section 1 of the Charter
and putative spouses were added as survivors under subsection 3(1), the
Applicant would not be better situated. As a putative spouse who is also a
cohabitating spouse, the PSSA does not disadvantage her in any way.
[50]
The
Applicant cannot be said to have public interest standing either. In Hy and
Zel's Inc v Ontario (Attorney General); Paul Magder Furs Ltd v Ontario (Attorney General), 1993 CanLII 30 (SCC), [1993] 3 S.C.R. 675 at para 13, the
Supreme Court of Canada summarized the conditions under which a court may
exercise its discretion to grant standing:
13 Following this Court's earlier decisions, in
order that the Court may exercise its discretion to grant standing in a civil
case, where, as in the present case, the party does not claim a breach of its
own rights under the Charter but those of others, (1) there must be a serious
issue as to the Act's validity, (2) the appellants must be directly affected by
the Act or have a genuine interest in its validity, and (3) there must be no
other reasonable and effective way to bring the Act's validity before the
court.
[51]
While
the Court is willing to accept that the exclusion of putative spouses from the
notion of survivor under the PSSA raises a serious subsection 15(1)
validity issue, the Applicant is not directly affected by its
under-inclusiveness.
[52]
As
a result of the above, the Applicant lacks standing to bring a subsection 15(1)
challenge to the impugned provisions.
[53]
Even
if the Court found that the Applicant has standing, her claim would not
succeed. Once the Court finds that a distinction has been made on an analogous
ground, the next step is to determine whether the distinction in the
legislation is discriminatory (i.e. whether it “perpetuates disadvantage”). In A,
cited above, Justice Abella described the discrimination inquiry at paragraphs
331 and 332:
[331] Kapp and Withler guide us, as a
result, to a flexible and contextual inquiry into whether a distinction has the
effect of perpetuating arbitrary disadvantage on the claimant because of his or
her membership in an enumerated or analogous group. As Withler makes
clear, the contextual factors will vary from case to case — there is no “rigid
template”:
The particular contextual factors relevant to the
substantive equality inquiry at the second step [of the Andrews test] will vary
with the nature of the case. A rigid template risks consideration of irrelevant
matters on the one hand, or overlooking relevant considerations on the other:
Kapp. Factors such as those developed in Law — pre-existing disadvantage,
correspondence with actual characteristics, impact on other groups and the
nature of the interest affected — may be helpful. However, they need not be
expressly canvassed in every case in order to fully and properly determine
whether a particular distinction is discriminatory . . .
.[Emphasis added; para. 66].
[332] The root of s. 15 is our awareness that
certain groups have been historically discriminated against, and that the
perpetuation of such discrimination should be curtailed. . . .
[54]
The
significant problem with the Applicant’s claim is that putative spouses do not
comprise a historically disadvantaged group; indeed, their status results from
a remedy that reflects society’s approval of their situation. It results from a
judgment (received upon a motion) relieving an individual of certain
consequences of failing to contract a valid marriage because they entered into
it in good faith. The PSSA is not perpetuating an historical
disadvantage or prejudice by not including them in subsection 3(1). While
non-3(1)(b) putative spouses may be deprived of a financial benefit, the
Supreme Court in Granovsky v Canada (Minister of Employment and Immigration),
2000 SCC 28 (CanLII), [2000] 1 S.C.R. 703 at para 58 determined that it “is not
just whether the appellant has suffered the deprivation of a financial benefit”
and that something more is required to establish a violation of subsection
15(1) of the Charter. That additional historical prejudice or
discriminatory element is lacking in this case. For these reasons, the Court
concludes that the impugned provisions do not violate subsection 15(1) of the Charter.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review and
the constitutional challenge of subsections 3(1), 25(4), 25(4.1), 25(10) and
25(11) of the PSSA as infringing on subsection 15(1) of the Charter
are dismissed with costs.
"André F.J.
Scott"
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