Federal Court Decisions

    

    

     Date: 19980918

    

T-1480-95

Between:          ATTORNEY GENERAL OF CANADA      Applicant

-and-

JAMES BIGNEY      Respondent

-and-

CANADIAN HUMAN RIGHTS COMMISSION      Intervenor

T-1481-95

And between:          ATTORNEY GENERAL OF CANADA      Applicant

-and-

KEVIN COWIE      Respondent

-and-

CANADIAN HUMAN RIGHTS COMMISSION      Intervenor

T-1482-95

And between:          ATTORNEY GENERAL OF CANADA      Applicant

-and-

DONALD FISK      Respondent

-and-

CANADIAN HUMAN RIGHTS COMMISSION      Intervenor

T-1483-95

And between:          ATTORNEY GENERAL OF CANADA      Applicant

-and-

MICHAEL REGNIER      Respondent

-and-

CANADIAN HUMAN RIGHTS COMMISSION      Intervenor

     REASONS for ORDER and ORDER

DENAULT J:

I.      These four consolidated applications for judicial review were heard on September 14, 1998 together with the judicial review application in Attorney General of Canada v. Laurence Magee, Court file No. T-1159-94, as they raise an identical issue.

II.      The respondents all filed s. 5 complaints under the Canadian Human Rights Act (hereinafter "CHRA") against the Department of Human Resources and Development (formerly Health and Welfare Canada) alleging discrimination on the grounds of sexual orientation and, with the exception of the respondent Michael Regnier, also on the grounds of family status and marital status because each was denied surviving spouse's benefits under the Canada Pension Plan Act (hereinafter "CPPA")

III.      The Commission investigated the respondents' complaints and, in a decision dated June 16, 1995, proceeded to request the President of the Human Rights Tribunal Panel to appoint a Tribunal to look into those complaints. It is the Commission's decision to authorize the appointment of a Tribunal, relative to the respondents' complaints, which is the subject of the Attorney General's applications for judicial review in the cases at bar.

IV.      The basis of the Attorney General's applications is that, according to the applicant, s. 62(1) of the CHRA exempts from the operation of that Act those pension plans which were created prior to March 1, 1978, even if such pension plans were amended after that date. The applicant maintains that the Commission was without jurisdiction to refer the respondents' complaints to a Tribunal since the Canada Pension Plan originally came into force on May 5, 1965.

V.      The Commission, however, submits that when the definition of "common law spouse" was added to s. 2 of the CPPA in 1986,¹ it had the effect of significantly increasing the pool of recipients of the plan by reducing the previously required three year cohabitation period to one year. This amendment, argues the Commission, had the ultimate effect of creating a new and different plan, thereby taking it outside the scope of s. 62(1) and positioning it within the Commission's jurisdiction.

VI.      Significantly, the s. 2 amendment to the CPPA² also explicitly introduced, into the definition of "spouse", the notion of a partner of the opposite sex. Until the death of their respective partners, each of the respondents had been in a same-sex relationship for the period of time required to qualify as a "common law spouse" under section 2 of the CPPA.

VII.      The legal issues raised and the arguments made in relation to the respondents herein with respect to the 1986 amendment of section 2 of the CPPA are identical to the issues and arguments which form the basis of the pleadings in the Magee case referred to above. For the reasons articulated in Magee, attached hereto, the within applications are therefore granted.

    

     O R D E R

     The application for judicial review in each of Court files T-1480-85, T-1481-95, T-1482-95 and T-1483-95 is granted, the decision of the Canadian Human Rights Commission, dated June 16, 1995, is set aside, and the Human Rights Tribunal is prohibited from enquiring into the respondents' complaints.

     J.F.C.C.

__________________

     ¹      R.S., c. 30 (2nd Supp.) s. 1.          The s. 2 spousal amendment was assented to on June 27, 1986 but only came into force on January 1, 1987.

     ²      As a result of the s. 2 amendment, the definition of spouse read as follows:
             "spouse", in relation to a contributor, means,                  (a) except in or in relation to section 55,                   (i) if there is no person described in subparagraph (ii), a person who is married to the contributor at the relevant time, or
                 (ii) a person of the opposite sex who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year, and
                 (b) in or in relation to section 55, a person who is married to the contributor at the relevant time,
             and, in the case of a contributor's death, the "relevant time", for greater certainty, means the time of the contributor's death;
     [My emphasis]