March 18, 2010
Yesterday, the Supreme Court of Canada ("SCC") heard arguments and reserved judgment in Withler v Canada (Attorney General) (see 2008 BCCA 539), the first case in over two years to challenge legislation solely on the grounds it breaches the equality guarantee of the Charter. The appeal revolves around a claim that the reduced payout from the death benefit fund based upon age discriminates on enumerated grounds. The media appears to be more gripped by the potential monetary ramifications of a successful appeal, an amount the Justice Department has calculated in excess of $2 billion; none the less, it is important to note that a Treasury Board report at the end of 2008 showed a $2.5 billion surplus in the death benefit fund. It will be interesting to see the approach the Court takes in light of recent jurisprudence on this issue.
Background
Ms. Withler and her co-appellant Ms. Fitzsimmonds are the lead plantiffs in two class-action lawsuits. Ms. Withler's husband worked in the public service for 35 years before retiring. Upon his death 3 years later, Ms. Withler received $38,000 from the death benefit fund. Similarly Ms. Fitzsimmonds received $5,000 when her husband, who had served 30 years in the navy, passed away at the age of 71.
The death benefit fund is a product of two respective acts: s. 47(1) of the Public Service Superannuation Act, RSC 1985, c P-36 [PSSA], and s. 66(1) of the Canadian Forces Superannuation Act, RSC 1985, c C-17 [CFSA]. Those acts provide a supplementary death benefit of twice the salary of the participants upon their death, subject to a reduction for age. In the case of the PSSA, public servants' benefits are reduced by 10% for each year in excess of 65. Under the CFSA, Canadian Forces members' benefits are reduced 10% for each year beyond 60.
The appellants claim that those provisions constitute age discrimination under s. 15 of the Charter. Accordingly, they seek a declaration that the provisions are inconsistent with the Charter and of no force and effect, and a judgment for the class in the amount by which benefit payments have been reduced. The defendants argue that the provisions are merely part of a larger legislative scheme which takes into consideration the changing financial requirements of participants as they age.
S. 15(1) states:
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.
At trial, the judge applied the analysis from Law v Canada, [1999] 1 SCR 497 [Law], and found that the provisions neither stigmatized the surviving spouses nor treated them unfairly, Accordingly, the trial judge found the admittedly differential treatment was not discriminatory. While the BC Court of Appeal ("BCCA") upheld the trial decision, the Honorable Madam Justice Rowles dissented. She would have that the trial judge was in error in applying the comparator group and in failing to conclude the provisions were discriminatory. The appellants now appeal to the SCC.
Comments
An interesting underlying factor is the Federal Court decision in Margolis v The Queen, 2001 FCT 85 [Margolis], which held s. 47 of the PSSA infringed the plaintiff's rights under s. 15 of the Charter and granted judgment accordingly. This decision served as the basis of a motion brought by the plaintiffs to strike out parts of the statement of defence on the grounds of res judicata or abuse of process. The motion was denied partially because Ms. Fitzsimmonds claim (and that of her class) would not be estopped and partly because of the risk of inconsistent results. Also factoring into the judge's decision was the public nature of this suit versus the private nature of the Margolis case.
As the Court in Law emphasized, discrimination depends not on whether there is merely differential treatment but on whether plaintiffs are stripped of some human dignity. In that case, though ss. 44(d) and 58 of the Canada Pension Plan, RSC 1985, c C-8, reduced CPP benefits to younger surviving spouses according to an arbitrary formula they were not held to be discriminatory. In Margolis, the trial judge conversely held that the PSSA scheme was illogical and consequently sent the message to older participants that their financial problems were not as worthy of concern; thus, their dignity was violated and s. 47 of the PSSA was unconstitutionally discriminatory.
In the case at bar, the majority of the BCCA held that the trial judge did not clearly err in finding that s. 47(1) of the PSSA and s. 66(1) of the CFSA provisions did not stigmatize the plaintiffs. They accepted his findings that supplementary benefits were part of a larger comprehensive scheme of insurance and pension designed to look after the changing needs of participants. While the comprehensive scheme was not perfect and would not meet the needs of every individual, it was broadly-based to meet the competing interests of its participants and did not contain the hallmarks of discrimination.
Rowles J.A., on the other hand, pointed out that the impugned provisions do not consider the greater needs of older spouses; indeed, they actually provides less to elderly applicants. While the government is not required to provide a benefit, should it choose to do so that benefit must be provided in a non-discriminatory fashion. According to her dissent, a reasonable person in this situation of the plaintiffs would feel devalued and ignored by these provisions.
Rowles J.A. also criticized the trial judge's questionable reliance on evidence that no complaints were filed prior to Margolis as proof few such persons felt their dignity was violated. The inference seems to be a logical fallacy if one accepts other potential causes for a dearth of complaints (such as individuals' desires to avoid conflict or unfamiliarity with the legal system). Finally, even if such a conclusion was warranted, the protections guaranteed by s. 15 of the Charter are for individuals, and accordingly should not be cast aside according to the feelings of a majority of comparable reasonable people.
Conclusion
The judgment of the Court of Appeal raises warning flags for potentially troublesome developments in the area of equality and discrimination. At its most extreme, one can argue that a precedent could be set for future state actors to claim an impugned provision is a small part of a comprehensive scheme that merely results in differential treatment without discrimination.
Regarding the merits of the case, it is telling the provisions directly target the elderly as requiring less support, contrary to sociological data suggesting that often their need is greater. The dissenting arguments of Madame Justice Rowles strike a chord here: the purported legislative objective is clearly undermined by the scheme, and does not obtain its goal in a non-discriminatory manner. While the private sector is obviously concerned about the implications of this case, it is important to remember that the Charter acts as the final defence for the individual, even where utilitarian efficiency would ignore him. At the very least, if the individual right must ultimately yield, the appropriate mechanism for achieving such a balancing act would be via s. 1.
2 Comments
What's presented here is a little odd, as
1) On the motion, the res judicata claim fails for want of mutuality. This makes quite a bit of sense when a class litigant is attempting to claim identity of interest between the representative member(s) of that class and some essentially unrelated third party on the basis of distinct issues framed in a distinct way. Abuse of process fails not so much for inconsistent results, which occupies very little of the verbiage, but because abuse of process (as extended from its sibling, res judicata) is not strongly operative when testing the constitutionality of a statute.
2) Between when this matter was litigated at the BCCA and when that court's judgment was handed down, the SCC substantively rebooted all s.15 jurisprudence in R. v. Kapp by taking the cathedral-like formalism of the Law factors and shoving them back into the framework from Andrews. Rowles' decision was very obviously written before Kapp came out: she says "yeah, I know! Kapp!" at paragraph 13 and then proceeds to write something like 140 paragraphs of Law-derived formalism of just the type Kapp was designed to get rid of.
As the leading case and one in which our chief justice again engaged in her distressing recent tendency to blow up the law without telling anyone how to put it back together again (cf. Grant -> Suberu, in which the rather troublesome issue of whether or not Mr. Suberu needed counsel and how one would get it to him in a parking lot is brushed aside as ka-zam, it's not a detention), Kapp probably deserves a mention here. Whatever comes out of this case will be interesting because no one really knows how s.15 works any more: Kapp's "down with formalism!" thrust is left rather incoherent as Bev decides the case by saying that s.15(2) saves the program so no 15(1) analysis is needed. But of course this also means that discussing the appeal decision is somewhat of a non-starter.
3) As a consequence of Kapp's slightly flimsy 15(2) innovation, a bunch of academic commentators have already advanced what your major criticism is in a slightly different context: now that 15(2) precludes even thinking about 15(1) and pretty much anything can be an ameliorative program, the state will call many things ameliorative programs. Or big, friendly programs that are so big and so friendly that no one could ever be made to feel bad by their operation.
4) Obviously the case you really want to jam with is Gosselin v. Quebec, which while pre-Kapp is basically the same thing as what's litigated here, albeit on the opposite end of the age spectrum.
I approve of your hearty argument from first principles, but it seems a bit light on the law side.
Grant,
Thanks for your comments and further clarification re other grounds on which the motion failed. My concerns in Withler focus more on the practical effects of where we seem to be going with our s. 15 analysis rather than the complications that have arisen in the jurisprudence.
Indeed the issues in Gosselin seem to mirror several of the issues here. At its narrowest my difficulties with Withler can be accurately summed up by this quote from McLachlin C.J.'s reasons:
"27 I emphasize that a beneficent purpose will not shield an otherwise discriminatory distinction from judicial scrutiny under s. 15(1). Legislative purpose is relevant only insofar as it relates to whether or not a reasonable person in the claimant's position would feel that a challenged distinction harmed her dignity. As a matter of common sense, if a law is designed to promote the claimant's long-term autonomy and self-sufficiency, a reasonable person in the claimant's position would be less likely to view it as an assault on her inherent human dignity."
In view of the evidence that the elderly have greater financial difficulties, hiding behind a vague concept of a "comprehensive scheme" seems to run contrary to the Law analysis.
Finally, I note in general that the extensive sums of money at stake here, as was the case in Gosselin, has no bearing on the s. 15 analysis but rather only on the s. 24 remedy.