Thursday, March 1, 2007

Partial victory; for same sex couples! a beginning!

Epic fight for gay rights ends with bittersweet win on CPP survivor benefits
Mar1 2007

What has been cast as the last great battle for same-sex equality ended Thursday with a partial victory in Canada's highest court.

While the Supreme Court said same-sex partners widowed before Jan. 1, 1998, were wrongly denied Canada Pension Plan survivor benefits for years, it limited retroactive compensation to one year. The judges ruled 7-0 against extending those payments all the way back to 1985 when equality rights took effect under the Charter of Rights and Freedoms.

Instead, the judgment makes any same-sex partner widowed after 1985 eligible for CPP survivor benefits averaging about $500 a month, plus 12-months' arrears.

That's far short of the compensation sought by about 1,500 claimants or their estates who fought a class-action battle.

The high court essentially said that Ottawa, unless it has acted in bad faith, can't be asked to reach far back in time to legally apply a modern-day understanding of rights.

"Achieving an appropriate balance between fairness to individual litigants and respecting the legislative role of Parliament may mean that charter remedies will be directed more toward government action in the future and less toward the correction of past wrongs," says the judgment.

The high court struck down part of a law passed in 2000 that granted CPP survivor benefits only to gay partners widowed after Jan. 1, 1998, calling it an unjust breach of equality rights. However, the ruling gives the federal government credit for what it calls a "good-faith" effort to update its laws.

The judgment is a mixed victory for claimants who fought for compensation back to 1985 after being excluded until 2000. They now stand to receive about $18,000 to $30,000 each.

For Albert McNutt, 56, it was a bittersweet victory. His partner, Gary Pask, died in 1993. McNutt was denied survivor benefits under CPP at the time because gay couples weren't legally recognized.

That changed in 2000 after Parliament was forced to update a raft of laws following a high court ruling the year before. It declared it unconstitutional to bar gay couples from collecting family benefits.

"They blatantly discriminated against gays and lesbians over the years," McNutt said.

"I wouldn't say it's totally 100 per cent fair," McNutt, who travelled from Truro, N.S., to be at the Supreme Court, said of the judgment. "But I'm happy with taking what we have. This is the last step of the journey for me, anyway. But I would wish for more."

In Quebec, which is not affected by Thursday's ruling because it runs its own parallel pension plan, gay survivors got much more.

The Quebec Court of Appeal ruled on a similar case in 2002. It struck down a restriction that paid survivor benefits only to same-sex spouses whose partners had died after 1999 - when many provincial laws were changed to recognize gay couples.

But the Quebec court went farther, saying that recognition of same-sex spouses should extend back to 1982 when the charter was first adopted.

Thursday's high court ruling explored the extent to which Ottawa is retroactively liable for wrongs committed as gay rights evolved. The federal government argued that a ruling for the claimants could open a floodgate of similar discrimination claims dating back to when the charter took effect.

Lawyers for the federal government argued the case could set a precedent for a host of other social programs. They were also concerned about the effect on Parliament's power to say when its laws take effect.

The judges were apparently listening.

A high court ruling that paved the way for same-sex benefits in 1999 "declares what the Constitution requires," says the judgment co-written by Justices Louis LeBel and Marshall Rothstein.

"It does not give rise to an automatic right to every government benefit that might have been paid out had the court always interpreted the Constitution in accordance with its present-day understanding of it."

Justice Michel Bastarache agreed in general terms with his high-court colleagues, but reminded them in separate reasons that Ottawa only took such "good-faith" action when its hand was forced.

"To put it bluntly, (equality rights) did not extend to same-sex couples until this court said it did."

The high court has been "very deferential" to Parliament of late, said Doug Elliott, a renowned gay-rights lawyer who acted for the claimants. Thursday's ruling is a case of the court trying to both right a constitutional wrong but also limit Ottawa's liability, he said.

Total costs of rewarding CPP survivor benefits retroactive to 1985 were estimated by the government's chief actuary at about $100 million, Elliott said.

The more limited judgment will likely cost between $50 million to $75 million, he said.

Late legendary gay-rights activist George Hislop launched the class action years ago. The crusade began when he was denied CPP survivor benefits after his partner of 28 years, Ron Shearer, died in 1986. Shearer had paid into the plan for decades.

Hislop didn't live long enough to see the high court rule. He died in October 2005 at 78, still fighting the federal government as it challenged lower-court judgments all the way up to the Supreme Court.

"He was a remarkable individual," Elliott said. "He was still fighting for gay rights from the grave. He'd be thrilled to be here today."

Elliott has been to the Supreme Court repeatedly, arguing almost every major gay equal-rights case.

"We're just about done, I think."

In future, this latest judgment could help widowed same-sex partners fight arbitrary cut-off dates for other benefit programs such as private pension plans, he said.

Openly gay New Democrat MP Bill Siksay said Thursday's ruling is cause to celebrate - even if the high court let Ottawa off easy.

"Governments have had to be dragged kicking and screaming towards equality for gay and lesbian Canadians," he said in an interview. "And I'm not going to forget that we've had to fight long and hard for all of the human-rights gains we've made."