Federal Court of Appeal Decisions

CORAM:      THE CHIEF JUSTICE

         HUGESSEN J.A.

         DESJARDINS J.A.

BETWEEN:

     A-311-94

     ALEXANDER ERNEST SUTHERLAND

     and

     SHARON GAY SUTHERLAND

     Appellants

     (Plaintiffs)

     - and -

     HER MAJESTY THE QUEEN

     in Right of Canada

     Respondent

     (Defendant)

     A-312-94

B E T W E E N :

     GUNDA MARY KING

     Appellant

     (Plaintiff)

     - and -

     HER MAJESTY THE QUEEN

     Respondent

     (Defendant)

Heard at OTTAWA, Ontario on Thursday, September 26, 1996 and on Wednesday, October 9, 1996.

Reasons delivered at OTTAWA, Ontario on Thursday, January 2, 1997.

REASONS FOR JUDGMENT BY:      DESJARDINS J.A.

CONCURRED IN BY:      HUGESSEN J.A.

CONCURRING REASONS BY:      THE CHIEF JUSTICE

         A-311-94

CORAM:      THE CHIEF JUSTICE

HUGESSEN J.A.

DESJARDINS J.A.

B E T W E E N :

     ALEXANDER ERNEST SUTHERLAND

     and

     SHARON GAY SUTHERLAND

    

     Appellants

     (Plaintiffs)

     - and -

     HER MAJESTY THE QUEEN

     in Right of Canada

    

     Respondent

     (Defendant)

     A-312-94

B E T W E E N :

     GUNDA MARY KING

    

     Appellant

     (Plaintiff)

     - and -

     HER MAJESTY THE QUEEN

     Respondent

     (Defendant)

     REASONS FOR JUDGMENT

    

DESJARDINS J.A.

     This is a joint appeal from a decision of the Trial Division which dismissed two actions brought against Her Majesty the Queen ("respondent") by Alexander Ernest Sutherland and his wife Sharon Gay Sutherland, and by Gunda Mary King ("appellants"). The appellants challenge the legislative provisions of the Canadian Forces Superannuation Act,¹ the ("CFSA") and the Defence Services Pension Continuation Act,² the ("DSPCA"), which deny survivor pension benefits to spouses who, in the case of the CFSA, marry a pensioner after the later of the pensioner's reaching age sixty or retiring, or who, in the case of the DSPCA, marry a pensioner after the earlier of the pensioner's reaching age sixty or retiring. The appellants claim that such provisions violate section 15 of the Canadian Charter of Rights and Freedoms³ as being discriminatory on the basis of age and sex.

FACTS

     The facts are not in dispute.

     Mr. Sutherland served in the Canadian Forces ("Forces") from 1941 to 1946 and again from 1949 to 1970. During the time of his service in the Forces, Mr. Sutherland was a "contributor" to the Superannuation Account under the CFSA, and has received pension benefits under this Act since his release from the Forces in 1970. Mr. Sutherland married Mrs. Sutherland in 1983, at which time he was sixty-three years old. Consequently, by virtue of subsection 31(1) of the CFSA, should Mrs. Sutherland survive her husband, she will not be entitled to receive a survivor benefit under the CFSA because, at the time of their marriage, Mr. Sutherland was over sixty years of age.

     The late Mr. King served in the Forces from 1923 to 1948. By virtue of his service, Mr. King received a pension under the DSPCA from the time of his release in 1948 until his death in 1990. Mr. King married Mrs. King in 1970, at which time Mr. King was sixty-five years old; they remained married until Mr. King's death twenty years later. Following her husband's death, Mrs. King applied for survivor benefits under the DSPCA. Mrs. King's application was denied on the basis of paragraphs 26(d) and (e) of the DSPCA because, at the time of her marriage to Mr. King, he was both retired from the Forces and over sixty years of age.

     The appellants brought separate challenges of the aforementioned provisions of the CFSA and the DSPCA on the grounds that they violate the equality guarantee provided by section 15 of the Charter because they impose both age and sex based discrimination. Though the arguments invoked by the appellants are substantially the same, the remedies they seek differ slightly. While the Sutherlands seek merely a declaration of invalidity of subsection 31(1) of the CFSA pursuant to section 52 of the Constitution Act, 1982, Mrs. King requests both a declaration of invalidity of paragraphs 26(d) and (e) of the DSPCA and a declaration of entitlement to survivor benefits under the DSPCA pursuant to section 24 of the Charter. Nevertheless, given the similar nature of the two actions, they were heard together in the Trial Division.

THE DECISION UNDER APPEAL

     In a decision, which is now reported,⁴ the trial judge held that none of the challenged subsections violates section 15 of the Charter as there is no discrimination on the basis of sex or age.

     The trial judge started by setting out the legislative history of the provisions in issue. He noted that, before they found their way into the impugned provisions, the exclusion from entitlement to survivor benefits of widows of post-age sixty marriages could be traced back to the 1901 Militia Pension Act,⁵ while both post-age sixty and post-age retirement marriages were excluding factors under the 1924 Civil Service Superannuation Act. He then summarized the expert evidence presented to him on the legislative intent behind these exclusions. He dismissed the testimony of one of the appellants' witnesses, Dr. Margaret McCallum, who stated that the purpose of the legislation was to protect the military pension scheme from women prepared to marry elderly or retired soldiers in order to qualify for survivor benefits, women referred to pejoratively as "gold diggers" who seek out "death-bed marriages." The trial judge was similarly unimpressed with the evidence given by the appellants' expert on the current economic situation of women in Canada, Ms. Margaret Townson, who gave general evidence to the effect that elderly unattached women are likely to have incomes below the poverty level since many were full-time homemakers dependent on their husbands for financial support. The trial judge noted that Ms. Townson offered no evidence with respect to the economic situation of widows of military personnel or of widows who had married after their spouses' retirement.

     Instead, the trial judge preferred the testimony of the respondent's expert, Ms. Sharon Hamilton, who explained that government pension plans are designed to ensure that plan benefits are reasonable in terms of their cost to employees and to the government as employer. Ms. Hamilton also explained that given the significant cost of survivor benefits, it has long been accepted that a plan's liability for these benefits should be limited to survivors existing at the time the employee's service ended. In the case of military personnel, this principle had been modified since they retire at comparatively young ages; by introducing the arbitrary age of sixty as an equivalent to retirement age, the Government was seeking to provide comparable survivor benefits to spouses of military personnel as are provided under other government pension plans. He concluded by accepting that age sixty, when used in the CFSA and the DSPCA, was simply a surrogate for the age of retirement.⁶ The trial judge also accepted the testimony of the respondent's expert actuary, Mr. Michael Cohen, who stated that to allow survivor benefits to spouses who marry military pensioners who are over sixty years of age would increase the annual costs to the plan by 0.23% of the annual cost, requiring an additional contribution of between $12.1 and $108 million in addition to the amortization over fifteen years of new liabilities of between $362 million and $3.87 billion. Mr. Cohen also explained that the expansion of an eligibility category of a pension plan may actually encourage the occurrence of behaviour, which would qualify for eligibility, a phenomenon known as "anti-selection", though he acknowledged that there were no studies which show that an anti-selection effect would occur if the benefits were expanded in the manner sought by the appellants. The trial judge concluded his summary of the expert evidence as follows:

In summary, I am satisfied that the objective of the limitations on survivor's benefits, contained in the legislation and at issue here, was cost containment in a general sense. As Mr. Cohen stated, in designing pension plans the objective of meeting employees' needs is constrained by the necessity of containing costs within an acceptable range, minimizing administrative complexities and of avoiding features of the plan that might allow members to take undue advantage of the plan. This does not mean that the purpose of the over-age 60 restriction on marriage is to protect the plans from "gold diggers". It is a secondary objective to the main objective and it is not based on any stereotypical view about female behaviour. Concern about isolated instances of "gold-digger marriages" does not amount to presumptions of female behaviour in general.7

     The trial judge then turned to the legal analysis of the alleged section 15 Charter violation, bearing in mind the different views of the parties. The appellants claimed that the CFSA and DSPCA provisions are discriminatory on the basis of age or sex. The respondent denied this, arguing that the distinctions are based on the employment status of the pensioner when he gets married, which is not a personal characteristic. The trial judge first looked at direct discrimination. After setting out the applicable section 15 Charter tests from such leading cases as Andrews v. Law Society of British Columbia⁸ and Symes v. M.N.R.,⁹ the trial judge made a number of findings.

     Firstly, he noted that different treatment of two groups does not always lead to discrimination. It would be unfair to indiscriminately impose the post-retirement limitation on spousal survivor benefits when Forces personnel usually retire at a much younger age than other federal government employees, and fairer to establish a deemed retirement age for Forces personnel that is closer to the normal retirement age of other federal government employees.

     Secondly, he found that the law is expressed in terms which appear to be neutral on its face. Though in practice female spouses are the ones excluded by the challenged limitations on eligibility to spousal survivor benefits, the trial judge did not believe that these restrictions are based on irrelevant personal characteristics. Rather, they are based, he said, on the need to contain costs and the necessity for all pension plans to fix the plan's liability as of a certain date.

     Thirdly, he found that the distinction drawn by the provisions in question is not based on a personal characteristic, but rather on the employment status of the pensioner if and when he marries after reaching the age of sixty. The trial judge felt that where the age of sixty is used in the legislation, it is not used as a personal characteristic but rather as a deemed retirement age to determine the individual's employment status and consequential pension rights based on that status. Employment status, not being a personal characteristic, is not covered by subsection 15(1) of the Charter.

     After reaching this conclusion with respect to direct discrimination, the trial judge continued his analysis as to whether adverse effect discrimination had occurred. He followed a two-step inquiry.

     He endeavoured first to determine "whether the section creates an adverse effect upon women (or a subgroup) in comparison with men (or a subgroup)" and, secondly, whether "a distinction has been found based upon the personal characteristic of sex". With respect to the first step, the appellants had argued that adverse effect discrimination had occurred since most spouses, who marry pensioners who are older than sixty, or who are younger than sixty, but are nonetheless retired, are women. Therefore, women are most likely to benefit by the removal of the limitation on eligibility for spousal survival benefits and women are most likely to suffer the burden imposed by the limitations. The trial judge felt that since both those who receive the benefit and those who do not are women, no comparative analysis was possible because the groups to be compared consist solely of women. Though perhaps elderly unattached women may suffer generally disproportionate economic difficulties, this situation existed independently of the impugned sections of the legislation. He held that the appellants simply had not demonstrated that there is a link between the distinctions in treatment and the disadvantage suffered by the group.

     Turning to the second step of the analysis, the trial judge noted that the appellants had submitted that the basis of the alleged discrimination is sex. However, since the distinction is actually between a group of women who marry pensioners after the pensioners have turned sixty, and another who marry pensioners before the pensioners have turned sixty, that distinction was clearly not based on sex. Given the decision of the Supreme Court of Canada in Symes, he held it was not possible to argue that a provision is discriminatory on the grounds of sex when the burden or benefit of the provision falls equally on both sexes, even when women would be most often affected by the provision.

     With respect to the appellants' argument that the discrimination was based on age, the trial judge ruled that such an argument was precluded by his earlier finding that the age sixty limitation found in the legislation is in fact a deemed retirement age for the purpose of determining employment status. As such, it was not a personal characteristic of the male pensioners and not a ground for a finding of discrimination on the basis of age. If, on the other hand, the age distinction is between an older group of women who marry post-retirement men and a younger group of women who marry pre-retirement men, it still must be determined whether either group suffers a burden or gains an advantage. Since there was no evidence led by either party to this effect, or to the distinction between women who marry post-retirement pensioners, and older, unattached women generally, or to show that women who marry post-retirement pensioners are historically a disadvantaged group, there could be no finding of unequality.

RELEVANT PROVISIONS

     A brief history is useful to understand the context in which the relevant provisions are to be found.

     The provisions in the CFSA and the DSPCA which deny survivor benefits to spouses of members who marry after the age of sixty, or after retirement, can be traced back to the 1901 Militia Pension Act.¹⁰ Prior to 1901, pensions were granted by Royal Warrant.

     The granting of a widow's pension under the Militia Pension Act was discretionary. Pursuant to section 18 of the Act, a pension was not to be granted if the applicant was, in the opinion of the Minister, unworthy of it or already wealthy. No pension was available to a widow of an officer who was more than twenty-five years younger than her husband and no pension would be granted if the officer had married after his retirement or if he was over sixty years of age at the time of the marriage. Pursuant to section 22, a widow's pension was subject to discontinuance in the event she became either unworthy of it or wealthy. Her pension would be suspended on remarriage, subject to becoming a widow again.

     Surviving widows' benefits were provided for the first time to public servants under the Civil Service Superannuation Act of 1924. Survivor benefits under this new Act were subject to a grant by the Governor in Council. They were also subject to the requirements that the proposed recipient both be and remain worthy and not remarry. Marriages where the husband had retired or was over sixty did not qualify. The benefit was subject to an actuarial reduction where the age of the pensioner exceeded that of the wife by twenty years or more.

     In 1946, the Militia Pension Act was amended by the addition of Part V, which covered those who joined the Forces after March 31, 1946, and those who were members on that date and subsequently elected to become a contributor.¹¹

     Under Part V, widows were disentitled to an allowance if, inter alia, the contributor was over sixty years of age at the time the marriage took place, but there was no restriction based on marriage after the member's retirement. Widows of members not covered by Part V were still subject to the dual restrictions denying survivor benefits if the marriage took place after retirement or after the member had reached the age of sixty.

     In 1950, the title of the Act was changed from the Militia Pension Act to the Defence Services Pension Act.¹²

     The Canadian Forces Superannuation Act, for its part, was enacted in 1959 and came into effect in 1960. The Act governs the pension entitlement of all persons serving in the Canadian Forces and all individuals covered by Part V of the Defence Services Pension Continuation Act.

     The Defence Services Pension Continuation Act provides pension benefits for those members of the Canadian Forces not covered by the Canadian Forces Superannuation Act on its enactment in 1959. This includes individuals who retired from the Canadian Forces prior to 1946, or who enrolled in the Forces prior to 1946 and did not elect prior to March 31, 1948, to be covered by Part V of the Defence Services Pension Continuation Act. The last contributor under the Defence Services Pension Continuation Act retired in January 1980. All of those receiving survivor pensions under the plan are female.

     In 1975, Parliament amended the Canadian Forces Superannuation Act to implement equality between female and male contributors. Survivor benefits for the spouses of female plan members were introduced at that time.

     Finally, in 1992, the Canadian Forces Superannuation Act and the Defence Services Pension Continuation Act were amended to allow pensioners whose spouses were not eligible to receive survivor benefits by reason of the post-age sixty or post-retirement marriage exclusions to elect to reduce the amount of their pensions so as to allow their spouse to receive a survivor pension. The amendment, which came into force in March of 1994, did not involve any additional cost to the plans.

     The impugned provisions read thus:

Canadian Forces Superannuation Act:

25. (1) On the death of a contributor who, at the time of his death, was entitled under this Act to an annuity, the surviving spouse and children of the contributor are entitled to the following allowances...

In the case of a surviving spouse, an immediate annual allowance equal to the basic allowance...

31. (1) Notwithstanding anything in this Act, the surviving spouse of a person is not entitled to any annual allowance under this Act if that person was over sixty years of age at the time of his marriage, unless, after that time, that person became or continued to be a contributor.

Defence Services Pension Continuation Act:

25. Subject to the provisions hereinafter contained, the Governor in Council may, as to him seems fit, grant a pension to the widow and a compassionate allowance to each of the children of any officer who, at the time of his death being on full pay, dies after a period at which a pension might be granted him, or who was, at the time of his death, in receipt of his pension.

26. Such pension or compassionate allowance shall not be granted

...

(d) if the officer married after retirement;

(e) if the officer was at the time of his marriage over sixty years of age;

     Since the challenge is based on the Canadian Charter of Rights and Freedoms, ("Charter")¹³ the relevant provisions are the following:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

ANALYSIS

     The appellants claim that the trial judge erred in determining that the impugned sections of the CFSA ant the DSPCA do not violate section 15 of the Charter on the basis of age and sex.

The subsection 15(1) analysis under the Charter

     In Egan v. Canada,¹⁴ La Forest J., with whom Lamer J., Gonthier J. and Major J. concurred, made reference to Andrews v. Law Society of British Columbia¹⁵ and then noted that not all distinctions resulting in disadvantage to a particular group will constitute discrimination. "It would bring" he said "the legitimate work of our legislative bodies to a standstill if the courts were to question every distinction that had a disadvantageous effect on an enumerated or analogous group. This would open up a s. 1 enquiry in every case involving a protected group. As I put it in Andrews, at p. 194, "it was never intended in enacting s. 15 that it become a tool for the wholesale subjection to judicial scrutiny of variegated legislative choices in no way infringing on values fundamental to a free and democratic society".¹⁶

     He then clarified the notion of discrimination:¹⁷

What then is discrimination? There are several comments in the course of McIntyre J.'s remarks in Andrews that go a long way towards clarifying the concept. Thus, at p. 174, he stated:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society

This statement cannot, however, be looked at in isolation. It must be read in conjunction with McIntyre J.'s earlier comment, at p. 165, as follows:

In other words, the admittedly unattainable ideal [of equality] should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.

Similarly in my separate reasons, at p. 193, I observed that "the relevant questions... is... whether the impugned provision amounts to discrimination in the sense in which my colleague has defined it, i.e. on the basis of 'irrelevant personal differences' such as those listed in s. 15..."

     He invited a three-step analysis developed by Gonthier J. in Miron v. Trudel:

The first step looks to whether the law has drawn a distinction between the claimant and others. The second step then questions whether the distinction results in disadvantage, and examines whether the impugned law imposes a burden, obligation or disadvantage on a group of persons to which the claimant belongs which is not imposed on others, or does not provide them with a benefit which it grants others.

The third step assesses whether the distinction is based on an irrelevant personal characteristic which is either enumerated in s. 15(1) or one analogous thereto.18

     Cory J. and Iacobucci J., with the concurrence of Sopinka J. and McLachlin J., invited the following two-step analysis:¹⁹

In Andrews, supra, and Turpin, supra, a two-step analysis was formulated to determine whether a s. 15(1) right to equality had been violated. The first step is to determine whether, due to a distinction created by the questioned law, a claimant's right to equality before the law, equality under the law, equal protection of the law or equal benefit of the law has been denied. During this first step, the inquiry should focus upon whether the challenged law has drawn a distinction between the claimant and others, based on personal characteristics.

Not every distinction created by legislation gives rise to discrimination. Therefore, the second step must be to determine whether the distinction created by the law results in discrimination. In order to make this determination, it is necessary to consider first, whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1) or which is analogous to those enumerated, and second, whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others.

     Cory J. later said:²⁰

Finally, in Turpin it was emphasized that the resolution of the question as to whether there is discrimination under s. 15(1) must be kept distinct from the determination as to whether or not there is justification for that discrimination under s. 1 of the Charter. At page 1325, Wilson J. stated:

In defining the scope of the four basic equality rights it is important to ensure that each right be given its full independent content divorced from any justificatory factors applicable under s. 1 of the Charter.

This analytical separation between s. 15(1) and s. 1 is important since the Charter claimant must satisfy the onus of showing only that there exists in the legislation a distinction which is discriminatory. Only after the court finds a breach of s. 15(1) does the government bear the onus of justifying that discrimination.

     L'Heureux-Dubé J. followed a three-step analysis.²¹

     There is no doubt, in the case at bar, that both the CFSA and the DSPCA create a distinction in the sense that they refer to age as an exclusion of benefit and that the DSPCA adds another disqualifier, namely retirement.

     The second step, in La Forest J.'s analysis, is whether the distinction results in a disadvantage, namely a burden, obligation or disadvantage not imposed on others.

     The second step in Cory J.'s analysis is whether the distinction created by the law is based on a personal characteristic and, if so, whether it results in discrimination. Discrimination, in his reasoning, means the denial of an equality right found in subsection 15(1) encompassing a burden, obligation or disadvantage not imposed on others.

     What do the impugned provisions say?

     A reading of the impugned provision under the CFSA indicates that members are deprived of their right of transmitting the entitlement to survivor benefits to their spouse if the member has reached the age of sixty or over at the time of marriage, unless he or she becomes, or continues to be, a contributor. Under the DSPCA, the officer looses this right if he marries after retirement or is over sixty at the time of marriage.

     Mr. Sutherland can only claim discrimination on account of age which is specifically mentioned as a factor of exclusion. If such discrimination exists, it is direct discrimination.

     Mrs. King and Mrs. Sutherland can only claim that they are denied the benefit of a pension by reason of their sex if it can be shown that women are adversely affected by the legislation. They cannot allege direct discrimination on account of sex, since the legislation makes no reference to sex.

a) Age-based discrimination

     The appellants submit that, on the face of both statutes, the plain and simple effect of these Acts is to deny a male officer (under the DSPCA) and a member (under the CFSA) the benefit of a widow's pension or surviving spouse's annual allowance based on age at the time of marriage. The trial judge, they say, avoided this conclusion despite the patent language of the provisions in question when he concluded that the benefit of a widow's pension or surviving spouse's annual allowance is denied an officer or member, not on account of age, but on the basis of their employment status at the time of marriage. He erred in stating that age sixty is used in the legislation, not as a personal characteristic, but rather as a deemed retirement age so as to determine the individual's employment status. If age sixty is used as a deemed retirement age, it is, say the appellants, equivalent to mandatory retirement at sixty which, in itself, constitutes age discrimination. In addition, they challenge the factual basis of the trial judge's finding that age sixty, when used in the CFSA and the DSPCA, is simply a surrogate for the age of retirement.

     This finding was largely based on the evidence of Ms. Hamilton.

     Ms. Hamilton, who was qualified as an expert in the development, content and administration of federal government public senior pension plans, both historically and currently, joined the Controller of the Treasury, in 1966, as a Junior Executive Officer. Her knowledge of the policy rationale behind the relevant pension plans, in relation to periods prior to her employment, was limited to her review of existing documents and her work with people who had been involved in the field longer than she had.²²

     In her affidavit before the Court,²³ Ms. Hamilton explains that the purpose of the federal plans, which comprise among others the CFSA and the DSPCA, is to provide plan members with an adequate replacement of pre-retirement earnings on retirement from the paid labour force and thereby assist the federal public sector in attracting and retaining the individuals necessary to deliver the government services mandated by Parliament. In designing and developing pension plans, the Government of Canada must strive to ensure that plan benefits are reasonable in terms of their costs to employees and to the Government as employer. The employee contribution rate must be reasonable in order to ensure that employees are not required to defer an inappropriate or unreasonable part of their earnings. At the same time, the Goverment must balance its responsibilities as a good employer against the needs of the taxpayer in order to ensure that the taxpayer will continue to support the Government's obligations as employer.

     Ms. Hamilton further states that the major federal plans, which comprise the CFSA but not the DSPCA, are required by their relevant statutes to be fully funded. This means that the balance in the existing Superannuation Account for each plan, together with anticipated future interest earnings, must be adequate to fund the cost of all anticipated future benefits to be paid under the plan, arising from the pension benefits accrued to date. In order to establish what the employer contribution rate should be, a determination must be made of the expected liabilities (i.e. benefits payable) and of the expected credits (i.e. employee and employer contributions plus interest). In order to make these determinations, assumptions are established in consultation with the plan's actuaries in two areas, namely (a) economic assumptions: future salary increases, the inflation rate, and interest rates; and (b) demographic assumptions: rates of termination, retirement, mortality, marriage and others. Survivor benefits, she adds, are a significant cost to the plans and costs related to the provision of survivor benefits have been instrumental in decisions to increase employee contribution rates. She says, moreover:

Throughout the development of the survivor benefit package, it was recognized that there needed to be a limit placed on these costly benefits. The primary principle adopted was that the plan's liability for survivor benefits would be limited to those survivors existing at the time the employee's service terminated. For this reason, benefits are not available to spouses or children where the marriage took place after the contributor ceased to contribute to the plan or if the child was conceived after contribution ceased.

In order to place public servants and members of the military and the RCMP on an equal footing with respect to survivor benefits, this limiting principle was modified under the CFSA and the RCMPSA in recognition and accommodation of the very different career structure and pattern of the Canadian Forces and the RCMP, where individuals retire at comparatively young ages. Thus, these plans extend spousal survivor benefits to a spouse whom the contributor marries after retirement, with the proviso that the marriage must take place before the contributor reaches age 60. The age of 60 was chosen since this is normal retirement age for members of the Public Service, that is the age at which a public service superannuation plan member with five or more years service (that is, a vested plan member) may retire with no reduction in his or her earned pension.

[My emphasis]

     She explained, in cross-examination, that age sixty was not in fact "chosen" as a surrogate for the normal retirement age in the public service in the sense that the exclusion dated from the 1901 Militia Pension Act. She then said:²⁴

I am not in a position to know what in fact the thinking was. I don't believe there is any evidence as to exactly what factors went into the decisions that were arrived at.

     She had referred earlier, however, to the H.D. Clark Report on Survivor Benefits prepared for Treasury Board Canada, April 1981, which stated:

It is generally accepted that a pension plan's liability for survivor pensions should be known at the time when the employee's service terminates for whatever reason and that any option to provide survivor benefits be exercised before the employee's own pension commences.25

[My emphasis]

     She admitted that she did not find any documentation which contained a clear explanation of the purpose of the post-age sixty and post-retirement marriage exclusions for survivor benefits but that, essentially, the provisions were considered a protection against open-ended liability. It was considered, she said, that in effect, "the individual on ceasing to accrue benefits, the employer, the Plan sponsor has an awareness of all the potential liabilities in relation to that individual. So that could be part of the thinking that was involved."²⁶ What she was suggesting was that by introducing the age-sixty exclusion for the military, the eligibility for spousal benefits was extended beyond the age of actual retirement, since members of the military retire at an earlier age than those in the public service.²⁷

     The appellants tell us that age sixty is not the age at which the majority of the public service does in fact retire. The 1992 Report on the Administration of the federal Public Service Superannuation Plan, Table 12,²⁸ indicates that of a total of 4,564 retirements between April 1, 1991, and March 31, 1992, only 908 public servants (approximately 20%) retired at age sixty. More than 1,200 public servants (greater than 25%) retired that year between the ages of fifty-five and fifty-nine. The balance of more than 2,300 public servants (greater than 50%) who retired that year were age sixty-one or older. Therefore, say the appellants, to the extent that the post-age sixty exclusion can be said to accord with any aspect of the civil service superannuation plan, there was no evidence that this is anything more than an historical coincidence.

     Ms. Hamilton explained that the "normal retirement age for members of the Public Service" referred to in her affidavit meant the pensionable age. She was asked to what extent the statements made by her in the paragraph quoted earlier were inferences she had drawn as opposed to statements based on actual, albeit second hand, experience of others. She replied it was information that was provided to her and it seemed consistent with what would be a reasonable explanation for the provision. She further testified that although the provision remained the same in those acts as it was in 1946, "it would have been a conscious decision in designing those pieces of Legislation, whether or not to adopt provisions from previous pieces of Legislation."²⁹ She later explained that the age sixty restriction "would be a question of whether or not the Government wanted to recommend to Parliament that, in effect, a new class of beneficiaries be created by extending a benefit to a group to whom it was not previously provided".³⁰

     Dr. McCallum, an expert in Canadian history with particular reference to the economic condition of Canadian women in relation to pension, testified for the appellants that the underlying purpose of excluding widows of post-retirement and post-age-sixty marriage from entitlement to widow's benefit was to protect the scheme established by the 1901 Militia Pension Act from "gold diggers" and death-bed marriages", and not to limit costs in a general sense. The trial judge rejected this evidence partly on account of the witness's reliance upon the history surrounding the Pension Act as opposed to the legislation in issue. The trial judge noted³¹ that, unlike the Pension Act, neither the DSPCA nor the CFSA were social welfare expenditure programs. These two Acts provided for pensions as part of the total compensation to persons having served in the Armed Forces. As admitted by Dr. McCallum, the Pension Act was not concerned with retirement or retirement planning. It was not funded by contributions and did not require a matching of income and liabilities in the way required by the CFSA and the Public Service Superannuation Act.

     From then on, it was open to the trial judge, as trier of fact, to retain what appeared to him to be a reasonable explanation of the purpose for the impugned exclusion and make the finding that "'age 60' when used in the CFSA and the DSPCA, is simply a surrogate for the age of retirement".³² Although, on its face, the impugned provisions are age-related, he held that "[b]y introducing the arbitrary age of 60 as an equivalent to retirement age, the Government was seeking to provide comparable survivor benefits to spouses of military personnel."³³ Later on, after a legal analysis, but based on the evidence, he concluded:

In the case at bar, the distinction is not based on a personal characteristic, it is based on the employment status of the pensioner if and when he marries after reaching the age of 60. The distinction turns on the employment status of the individual before and after retirement, or before and after the individual commences to receive pension payments. Where age 60 is used in the legislation, it is not used as a personal characteristic but rather as a deemed retirement status and consequential pension rights based on that status. Age 60, when used here, therefore, refers to a job-related characteristic, that is: employment status. Employment status is not a personal characteristic, and therefore not covered by subsection 15(1) of the Charter.34

     I see no flaws in the trial judge's analysis of the impugned provisions of the CFSA. He was satisfied that exclusions were required under the plan but that age, although referred to, was not the true factor of exclusion. I note that in his treatment of direct discrimination, he stated that "the law is expressed in terms which appear to be neutral on its face".³⁵ It is clear, in my view, that to the extent the impugned provisions are non-neutral on their face, the trial judge found them to be neutral once the structure of the statute as a whole is understood.

But, there is more to this.

     The CFSA extends eligibility for survivor benefits from the normal cutting-off time of actual retirement age of the member up to the deemed retirement age of sixty in the public service. Mr. Sutherland retired from the Forces at around the age of fifty. Had there been no extension to age sixty, the exclusion would have happened earlier.

     Age sixty becomes, therefore, a yardstick which sets the ceiling for an extension which serves to treat members of the military on an equal footing with civil servants. When members reach such age, and marry subsequently, the exclusion they face does not constitute discrimination since they do not find themselves at a disadvantage by comparison with others. They, in fact, receive the same treatment as those in comparable government regimes. What the appellants feel is taken away from them, the others do not have. No discrimination has, therefore, occurred.

     Things are different under the DSPCA. Age alone, regardless of employment status, also disqualifies.

     Mr. King retired around the age of forty-three and turned sixty around 1965 well before April 17, 1985, the date section 15 of the Charter came into effect. Both when he retired and when he turned sixty, he was still not married to Mrs. King, the marriage having occurred only in 1970. No survivor benefits could, therefore, have passed on.

     Mrs. King is asking the Court to recognize that she was excluded from a widow's pension on the death of her husband in May 1990, five years after section 15 came into force. She claims that the defining or crystallising event, upon which entitlement to a survivor benefit depends, is the date of her husband's death.

     I see no justification in this argument. The legislation focuses on the happening of an event, namely the date Mr. King would have retired or turned sixty, had he been married at that time. This is the relevant crystallising event upon which a survivor benefit may potentially become payable. Not the status of widowhood of Mrs. King. The marital status of Mr. King at the cutting-off date of his retirement or turning sixty is not an ongoing condition or state of affairs so as to justify the application of the Charter.³⁶

     Finally, the appellants cannot maintain that the impugned provisions amount to mandatory retirement. The plans simply recognize that members of the military normally retire at an earlier age than public servants and allow for an extension of eligibility. The post-age marriage exclusion under the CFSA is effectively waived if the pensioner becomes a plan member again, which is another indication that liability under the plan is exclusively a money concern.

b) Sex- and age-based discrimination - the anti-selection effect

     The appellants submit that the purpose of excluding widows of post- retirement and post-age sixty marriages from entitlement to widows' pensions was not to limit cost, in a general sense, but rather to protect the scheme established by the 1901 Militia Pension Act from "gold diggers" and that it amounts to discrimination based on sex.

     They rely not only on their own evidence, particularly that of Dr. McCallum, but also on the report and the oral evidence of the respondent's expert witness, Mr. Cohen, who stressed the fact that the expansion of an eligibility category of a pension plan may actually encourage the occurrence of a type of behavior, which he called the problems of anti-selection that arise in extending survivor benefits to post-age sixty marriages. Mr. Cohen said that in designing pension plans, the objective of meeting employees's needs is constrained by the necessity of containing costs within an acceptable range, minimizing administrative complexities and avoiding features of the plan that might allow members to take undue advantage of the plan. He stated that the CFSA recognized individuals who become spouses after retirement, however, "there is a limit on this in order to protect the plan against anti-selection, and so an age limitation has been imposed".³⁷ He explained the anti-selection phenomena thus:³⁸

If you have a dental benefit, then people have their teeth fixed more frequently. It is probably a good thing. So I don't think I am making a moral judgment per se about anti-selection, but just mentioning the fact that we do see in pension plans, that where a generous provision is available, be it a survivor benefit, be it an early retirement benefit, be it a disability benefit, that the presence of that benefit tends to encourage people to do things that they might not otherwise do. And therefore drives up the cost of that benefit.

     Anti-selection is also related to age. As one ages, the risk of anti-selection is higher. Indeed, Mr. Cohen testified that:³⁹

... as people get older, the chances are that marriages are done, are contracted for reasons of the survivor benefit. Much more likely that that happens than a 30 year old or a 40 year old.

     The appellants' position is that the exclusionary provisions were intended to protect the plans from a perceived risk presented by opportunistic young women in relation to elderly men. This is, they say, the very cause of unconstitutionality. Rather than relying upon criteria which specifically address the particular perceived risk (e.g. a provision which excluded those who had married a pensioner who was in poor health at the time of the marriage) the legislation simply excluded all widows of post-retirement and post-age sixty marriages.

     The trial judge found anti-selection to be a secondary objective to the main objective of the Acts, but said that it was not based "on any stereotypical view about female behavior." He held that "[s]election against the plan will occur whether the pensioners are men or women",⁴⁰ and also that "[c]oncern about isolated instances of 'gold-digger marriages' does not amount to presumptions of female behavior in general".⁴¹

     I can find no fault with the judge's analysis on this point.

     By virtue of an amendment in 1975, the exclusion in the CFSA applies equally to male and female plan members. Both sexes are, therefore, treated on the same footing under the plan. Under the DSPCA, only widows are eligible to receive survivor benefits. A woman cannot claim discrimination on the basis of sex in respect of a benefit only available to women.

Conclusion

     The appellants have not satisfied the second step of either La Forest J. or Cory J.'s analyses under section 15 of the Charter. In addition, if I refer to the terms of Cory J.'s analysis, the appellants have not met their onus of showing that the impugned provisions create a distinction based on a personal characteristic and that they suffer a disadvantage. Since no breach of subsection 15(1) of the Charter has occurred, no section 1 analysis is warranted.

     I would dismiss both appeals with costs.

     "Alice Desjardins"

     J.A.

"I concur

James K. Hugessen J.A."

     A-311-94

CORAM:      THE CHIEF JUSTICE

         HUGESSEN J.A.

         DESJARDINS J.A.

B E T W E E N :

     ALEXANDER ERNEST SUTHERLAND

     and

     SHARON GAY SUTHERLAND

     Appellants

     (Plaintiffs)

     - and -

     HER MAJESTY THE QUEEN

     in Right of Canada

     Respondent

     (Defendant)

     A-312-94

B E T W E E N :

     GUNDA MARY KING

     Appellant

     (Plaintiff)

     - and -

     HER MAJESTY THE QUEEN

     Respondent

     (Defendant)

THE CHIEF JUSTICE

     I have had the benefit of reading in draft the reasons of my colleague Desjardins J.A. I agree with her proposed disposition of these appeals. However, for the reasons that follow, I am in respectful disagreement with her conclusion that paragraph 26(e) of the Defence Services Pension Continuation Act, R.S.C. 1970, c.D-3 ("DSPCA"), and subsection 31(1) of the Canadian Forces Superannuation Act, R.S.C. 1985, c.C-17 ("CFSA") do not infringe subsection 15(1) of the Canadian Charter of Rights and Freedoms ("the Charter") and are therefore not discriminatory.

     I accept the facts underlying these appeals as they are stated by my colleague in her reasons.

     The learned Trial Judge preferred the evidence of Ms. Hamilton to that of Dr. McCallum, as he was entitled to do. However, in my respectful view, he erred in law when he concluded that the "over sixty years of age" requirement in the CFSA and the DSPCA was not, as it purported to be, a distinction based on age but one based on employment status.

     For ease of reference, I reproduce the relevant provisions here. Section 26 of the DSPCA reads:

26. Such pension or compassionate allowance shall not be granted ...

(d)      if the officer married after retirement;

(e)      if the officer was at the time of his marriage over sixty years of age;

[Emphasis added.]

     Section 31(1) of the CFSA reads:

31(1) Notwithstanding anything in this Act, the surviving spouse of a person is not entitled to any annual allowance under this Act if that person was over sixty years of age at the time of his marriage, unless, after that time, that person became or continued to be a contributor.

[Emphasis added.]

     The italicized words are clear and unambiguous, and therefore require no further interpretation.⁴² The phrase "over sixty years of age" limits availability of the survivor benefits to cases in which the contributors marry at or before the age of sixty. To conclude, as the Trial Judge did, that the phrase in each case is a surrogate for the age of retirement is, in my respectful view, to rewrite the legislation. In Driedger on the Construction of Statutes, Sullivan cautions against this kind of judicial rewriting of legislation in the following passage:

By accepting an implausible or impossible interpretation, the court in effect substitutes a judicially created rule for the one chosen by the legislature. It is one thing to add or delete words to express more clearly what the legislature has said expressly or by implication; it is another thing to amend legislation so that it says what a court thinks it should say or what a court thinks the legislature would have liked it to say if it had given the matter more thought. This way of rewriting legislation is not permitted under the plausible meaning rule.43

     Regardless of the motivation of Parliament in enacting these provisions, they preclude eligibility for survivor benefits on the basis of age.

Charter Subsection 15(1)

     I respectfully disagree with the conclusion of my colleague and of the Trial Judge that these provisions are not discriminatory because they extend a benefit, which would not otherwise have been available, to widows who had married former contributors to the pension plans after the contributors' retirement. The Trial Judge found that by extending contributors' ability to provide survivor benefits from the early age of military retirement to age sixty, Parliament extended a benefit that would not otherwise have been available. But this is clearly not so in the case of paragraph 26(e) of the DSPCA which disentitles a surviving spouse from benefits if she had married a contributor after he had reached age sixty, even if he were still working at the time of marriage.

     The Parliamentary intention to extend benefits to surviving spouses of post-retirement marriages is laudable. In this case, however, Parliament has chosen to limit the extension of the survivor benefit on the basis of an enumerated ground of discrimination, age. But the laudable intention of Parliament in imposing the "over sixty years of age" limitation, while relevant to the issue of justification for the limitation, is not, as I understand the authorities, relevant to the issue of whether the provisions are discriminatory.

     In my respectful view, the Trial Judge erred in law by introducing in his subsection 15(1) Charter analysis the motivation of Parliament in enacting the two provisions. As Iacobucci J., speaking for the majority of the Supreme Court of Canada in Symes v. Canada, has observed, "animus is irrelevant to discrimination. A finding of discrimination can be made even if there has been no intention to discriminate."⁴⁴

     The legislative intent of a provision is a consideration which properly belongs in the section 1 portion of Charter analysis. Wilson J. held for the majority of the Supreme Court in R. v. Turpin:

In defining the scope of the four basic equality rights it is important to ensure that each right be given its full independent content divorced from any justificatory factors applicable under s.1 of the Charter.45

     The analytical distinction between subsection 15(1) and section 1 is important. The claimant bears the onus of showing that the legislation creating a distinction is discriminatory. The government bears the onus of justifying that discrimination.⁴⁶ McLachlin J., speaking for herself and three others, observed in Miron v. Trudel:

The division of the analysis between s.15(1) and s.1 accords with the injunction to which this Court has adhered from the earliest Charter cases: courts should interpret the enumerated rights in a broad and generous fashion, leaving the task of narrowing the prima facie protection thus granted to conform to conflicting social and legislative interests to s.1.47

     The proper approach to subsection 15(1) analysis has been developed in Andrews v. Law Society of British Columbia,⁴⁸ R. v. Turpin,⁴⁹ Symes v. Canada,⁵⁰ Miron v. Trudel⁵¹ and Egan v. Canada.⁵² In Egan, Cory and Iacobucci JJ., speaking for the majority of the Court with respect to the subsection 15(1) issue, outlined the proper framework for subsection 15(1) analysis. The first step in the equality analysis is to determine whether the impugned law creates a distinction which denies the claimant's right to equality before the law, equality under the law, equal protection of the law, or equal benefit of the law. The second step is to determine whether the distinction is discriminatory because it denies equality on the basis of an enumerated or analogous ground, and imposes a disadvantage or burden by withholding or limiting access to benefits or advantages which are available to others.⁵³

     I agree with my colleague that paragraph 26(e) of the DSPCA and subsection 31(1) of the CFSA create a distinction. They deny survivor benefits to the surviving spouses of contributors who married when the latter were "over sixty years of age". In doing so, they draw a distinction between surviving spouses who marry contributors at or before the latter reached the age of sixty and those who marry after contributors reached that age. In the former case, the surviving spouses are entitled to receive survivor benefits: in the latter they are not. Without deciding whether this distinction constitutes direct age discrimination against the surviving spouses, the distinction at least amounts to adverse effect discrimination.⁵⁴

     I respectfully disagree with the conclusion of my colleague that the application of the Charter depends upon "the date Mr. King would have retired or turned sixty, had he been married at that time". Surviving spouses become entitled to survivor benefits neither upon the sixtieth birthday of their husbands (when the female appellants were not even married to the contributors), nor upon their marriage, but upon the death of their husbands. Put another way, the wife of a contributor does not become a "surviving spouse" until her husband dies. Mr. King died in 1990, when subsection 15(1) the Charter was already in force. Furthermore, the denial of survivor benefits to Mrs. King continues to the present time. The denial of survivor benefits to her amounts to a denial of an economic benefit available to surviving spouses of contributors who married at or before the age of sixty.

     The "over sixty years of age" distinction, then, clearly constitutes a denial of equal benefit of the law. The survivor pension confers an economic benefit, access to which is denied to the surviving spouses of contributors who marry after sixty years of age.

     My colleague concludes that the "over age sixty" distinction does not result in disadvantage to contributors because it places military contributors on an equal footing with federal civil servants. I respectfully disagree with this conclusion. Comparison, of course, is an appropriate component of equality analysis. As Cory and Iacobucci JJ. observed in Egan:

In Andrews, supra, it was recognized that any search for equality or discrimination requires comparisons to be made between groups of people. At page 164, McIntyre J. stated:

It [equality] is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises.55

     The Trial Judge was entitled to find, on the evidence before him, that the retirement age of federal civil servants constituted part of the social and political setting in which the legislation was enacted. However, the question of the constitutional validity of these provisions arises because of the age-based distinction created by the legislation. The comparison between groups must be approached with a view to the distinction created by the legislation. In these provisions, Parliament has created a distinction between surviving spouses of contributors who marry after the age of sixty and those who marry at or before that age. In my respectful view, the appropriate groups for comparison, then, are those created by the legislation itself: surviving spouses of contributors who marry after age sixty should be compared with surviving spouses of contributors who married at or before that age; rather than with public servants not mentioned in the legislation.

Charter Section 1

     The factual findings of the Trial Judge support the conclusion that, although the provisions are discriminatory on the basis of age, they are justified under section 1. The provisions clearly constitute limits prescribed by law. The objectives of the provisions, that is, cost containment and the necessity to fix liability of the pension plan as of a certain period, are sufficiently pressing and substantial to justify limitation of a Charter right. The age-based limitation results in a substantial cost saving and thus is rationally connected to these objectives.

     The legal conclusion of the Trial Judge that the legislation was adopted in order to extend more generous benefits to retired military personnel than would otherwise be available should weigh as an important consideration in the section 1 analysis. Moreover, Parliament has sought, through the impugned provisions of the DSPCA and the CFSA, to distribute limited resources among competing groups, including current contributors, former contributors and their surviving spouses and dependents. Deference to Parliament is appropriate in a case such as this one. In such circumstances, the proportionality test is satisfied if the government has demonstrated a "reasonable basis" for the age-based limitation.⁵⁶

     The factual findings of the Trial Judge concerning the purpose of the extension of benefits to age sixty, the increased cost of extending benefits to the excluded group, and the actuarial uncertainty attached to the extension of benefits demonstrate a reasonable basis for the limitation on the appellants' equality rights imposed by paragraph 26(e) of the DSPCA and subsection 31(1) of the CFSA. The limit on the appellants' equality rights in this case, then, is reasonable and justified under section 1 of the Charter.

Conclusion

     Although the age limitations in the impugned provisions of the DSPCA and the CFSA are discriminatory, they nevertheless constitute reasonable limits on the equality rights of the appellants.

     For these reasons, I would dispose of the appeal in the manner proposed by my colleague.

                 "Julius A. Isaac"

                     Chief Justice

     FEDERAL COURT OF APPEAL

BETWEEN:

     A-311-94

     ALEXANDER ERNEST SUTHERLAND

     and

     SHARON GAY SUTHERLAND

     Appellants

     (Plaintiffs)

     - and -

     HER MAJESTY THE QUEEN

     in Right of Canada

     Respondent

     (Defendant)

     A-312-94

BETWEEN:

     GUNDA MARY KING

     Appellant

     (Plaintiff)

     - and -

     HER MAJESTY THE QUEEN

     Respondent

     (Defendant)

     REASONS FOR JUDGMENT

                        

__________________

¹      R.S.C. 1985, c. C-17, subsection 31(1).

²      R.S.C. 1970, c. D-3, sections 25, 26.

³      Part I of the Constitution Act, 1982, (Canada Act 1982 (U.K.), 1982, c. 11, Sch. B).

⁴      Sutherland v. Canada, [1994] 3 F.C. 662.

⁵      1 Edward VII, c. 17.

⁶      [1994] 3 F.C. 662 at 676.

⁷      [1994] 3 F.C. 662 at 680.

⁸      [1989] 1 S.C.R. 143.

⁹      [1993] 4 S.C.R. 695.

¹⁰      1 Edward VII, c. 17.

¹¹      10 Geo. VI, c. 59, Part V applied to enlisted personnel as well as to officers.

¹²      14 Geo. VI, c. 32.

¹³      Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11.

¹⁴      [1995] 2 S.C.R. 513.

¹⁵      [1989] 1 S.C.R. 143.

¹⁶      [1995] 2 S.C.R. 513 at 529-30.

¹⁷      [1995] 2 S.C.R. 513 at 530.

¹⁸      [1995] 2 S.C.R. 513 at 531.

¹⁹      [1995] 2 S.C.R. 513 at 584.

²⁰      [1995] 2 S.C.R. 513 at 586.

²¹      [1995] 2 S.C.R. 513 at 552. She said:
             In my view, for an individual to make out a violation of their rights under s. 15(1) of the Charter, he or she must demonstrate the following three things:
             (1)      that there is a legislative distinction;              (2)      that this distinction results in a denial of one of the four equality rights on the basis of the rights claimant's membership in an identifiable group;              (3)      that this distinction is "discriminatory" within the meaning of s. 15.

²²      Transcript, vol. 2, at 37-38; Cross-examination of Ms. Sharon Hamilton.

²³      Appeal Book, Common Appendix I, vol. II, at 309-10.

²⁴      Transcript, vol. 3, at 28, line 25; Cross-examination of Ms. Sharon Hamilton.

²⁵      Appeal Book, Common Appendix I, vol. IV, 589 at 614.

²⁶      Transcript, vol. 2, at 78-79; Examination-in-chief of Ms. Sharon Hamilton.

²⁷      Transcript, vol. 3, at 25, line 20; Cross-examination of Ms. Sharon Hamilton.

²⁸      Appeal Book, Common Appendix I, vol. III, 408 at 422.

²⁹      Transcript, vol. 3, at 27; Cross-examination of Ms. Sharon Hamilton.

³⁰      Transcript, vol. 3, at 31; Cross-examination of Ms. Sharon Hamilton.

³¹      [1994] 3 F.C. 662 at 674.

³²      [1994] 3 F.C. 662 at 676.

³³      [1994] 3 F.C. 662 at 676.

³⁴      [1994] 3 F.C. 662 at 685-86.

³⁵      [1994] 3 F.C. 662 at 684.

³⁶      See R. Gamble (1988), 2 S.R.C. 595 at 628; Dhami v. Canada (Minister of Employment and Immigration) (1989), F.C.J. No. 112 (F.C.A.); Benner v. Canada (Secretary of State) (1994), 1 F.C. 250 (F.C.A.).

³⁷      Appeal Book, Common Appendix I, vol. V, at 772; Affidavit of Mr. Michael Cohen.

³⁸      Transcript, vol. 3 at 126; Cross-examination of Mr. Michael Cohen.

³⁹      Transcript, vol. 3, at 122; Cross-examination of Mr. Michael Cohen.

⁴⁰      [1994] 3 F.C. 662 at 679.

⁴¹      [1994] 3 F.C. 662 at 680.

⁴²      McCraw v. R., [1991] 3 S.C.R. 72 at 80; R. v. Multiform Manufacturing Co. Ltd., [1990] 2 S.C.R. 624 at 630. See also Maxwell, The Interpretation of Statutes, 12th ed. (Toronto: Carswell, 1969) at 28-29; Sullivan, Driedger on the Construction of Statutes (Toronto: Butterworths, 1994) at 1-8; Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 28, 87; Coté, The Interpretation of Legislation in Canada (1984) at 2.

⁴³              Supra at 103.

⁴⁴      [1993] 4 S.C.R. 695 at 745; emphasis in original.

⁴⁵              [1989] 1 S.C.R. 1296; see also Egan v. Canada, [1995] 2 S.C.R. 513 at 586.

⁴⁶      Egan, ibid; Miron v. Trudel, [1995] 2 S.C.R. 418 at 485-486.

⁴⁷              Ibid at 486.

⁴⁸      [1989] 1 S.C.R. 143.

⁴⁹      Supra.

⁵⁰      Supra .

⁵¹      Supra.

⁵²      Supra .

⁵³      Ibid at 584.

⁵⁴      See ibid at 587.

⁵⁵              Ibid at 585.

⁵⁶      See Irwin Toy Ltd. v. Québec (A.G.), [1989] 1 S.C.R. 927.