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PUBLIC PENSION PLANS - Canada Pension plan - Pensions and supplementary benefits - Survivor’s pension

Friday, September 03, 2021 @ 5:14 AM  


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Application by Weatherly for judicial review of a decision of the Appeal Division of the Social Security Tribunal setting aside the decision of the General Division finding that s. 63(6) of the Canada Pension Plan that limited the surviving spouse to one survivor’s pension discriminated against the applicant based on sex contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms (Charter). The applicant was a twice widowed woman. She argued the provision discriminated against women because most people who were twice-widowed were women.

HELD: Application dismissed. Section 63(6) of the Canada Pension Plan was constitutional and did not discriminate based on sex. The Plan was self-sustaining and had no recourse to general government funding. If payments were increased for survivorship benefits, either contributions must increase, or payments out must decrease. The applicant’s evidence filed before the Social Security Tribunal did not establish that s. 63(6) drew a distinction based on sex or denied a benefit. The nature and quality of the evidence was sparse and unhelpful as much of the evidence addressed only the disadvantages faced by widows generally. Some of it was not even specific to widows. The survivor’s pension was not intended to provide symbolic recognition of non-financial contributions made to a marriage but to provide a minimum income supplement, related in part to contributions made to the Plan by the spouse and not just the contributions made during marriage. The applicant failed to prove any connection between s. 63(6) and s. 15(1) of the Charter and that it had a disproportionate adverse effect on women. Even if s. 63(6) was discriminatory, s. 63(6) was a reasonable limit in a free and democratic society and was saved under s. 1. The objective of s. 63(6) was to limit all survivors to one pension to achieve equity amongst survivors and reflect the common circumstance faced by survivors, the loss of a current wage earner. These objectives were pressing and substantial and could justify any intrusion on s. 15(1) rights in this case. The pension was only ever intended to make-up for the loss of one wage-earner and it would be unfair to some recipients if others could receive simultaneous benefits for two wage-earners. Section 63(6) had a rational connection to this objective as it limited each survivor to one survivor’s pension. The beneficial effects of s. 63(6) outweighed the deleterious effects of any rights infringement.

Weatherley v. Canada (Attorney General), [2021] F.C.J. No. 813, Federal Court of Appeal, D.W. Stratas, M.J.L. Gleason and R. LeBlanc JJ.A., July 29, 2021. Digest No. TLD-August302021009