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Reasons and Decision
Attendance at hearing
The following people attended the hearing:
S. M.: Appellant
Hasan Junaid: counsel for the Respondent
Andrew Williamson: expert witness called by the Respondent
Christian Beaulieu: observer on behalf of the Minister
Overview and history of proceedings
Application
[1] On September 12, 2013 the Appellant applied for a Canada Pension Plan (CPP) survivor’s pension in relation to the deceased contributor G. W. who died in August 2013 at the age of 50. The Appellant and G. W. had cohabited in a common-law relationship from May 2011 until G. W.’s death. [Application: GD3: 50 to 55].
[2] On October 15, 2013 the Respondent denied the application on the basis that the Appellant had not reached 35 at the time of the deceased contributor's death, she was not disabled, and she did not have dependent children. [GD3-7]
Appellant raises constitutional issue
[3] On December 19, 2013 the Appellant requested a reconsideration of the Respondent’s decision. She stated that because the denial decision was based on her current age it violated her rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms (Charter). [GD3-6]
[4] On December 30, 2013, the Respondent maintained its decision that the Appellant is not entitled to the survivor’s pension. [GD3-4]
[5] On March 31, 2014 the Appellant appealed to the Social Security Tribunal. In her appeal she stated that her husband was a 50 year old veteran who died from a service related injury after a long battle with stomach cancer. She listed in detail the ways in which their home had been affected and what they had been dealing with since his diagnosis. She concluded as follows:
If someone dies leaving behind a spouse who is 35 or older they are eligible for the CPP Survivors Pension but if someone who is 30 loses a spouse they are not eligible to receive it until they are 65. There is 30 years in the difference from when one person is eligible versus the other. How does this not put the younger applicant at a disadvantage, how do these situations equate and what happens to the deceased’s contributions if their young spouse does not make it to age 65.
Although there are arguments and decisions that have gone before, they still seem to miss the inequality that has been created here by an arbitrary policy with respect to age. Age based distinctions are common and necessary in ordering our society but is it not important when these distinctions are made that they be made fairly and with sense? All examples that come to mind are to give an appropriate age requirement for something specific. How can an age requirement be put on death? I cannot make sense of this. Death can happen at any time, leaving grieving spouses of varying ages, with varying circumstances, income and debts, with plans and goals based on two incomes and individuals, not one. Isn't the purpose of the CPP Survivors Pension to ease the burden of those who have lost a spouse? I lost my husband. Did his death have less impact?
[6] On April 24, 2015 the Tribunal issued a Notice of Intention to summarily dismiss and possible charter challenge. The Appellant was notified that subject to a successful charter challenge to the applicable provisions the Tribunal was bound by the CPP provisions. The Appellant was also notified that if she intends to pursue a charter challenge she is required to file a notice in accordance with subsection 20(1)(a) of the Tribunal Regulations.
[7] On February 11, 2016 the Appellant filed a notice of her intention to pursue a charter challenge. [GD5-1]
[8] On May 4, 2016 the Tribunal set out the directions for the conduct of the charter appeal. [GD-11]
[9] On August 11, 2016 the Appellant filed her record. [GD14]
[10] On November 18, 2016 the Respondent filed its record and expert report. [GD16 to GD19]
[11] On December 18, 2016 the Appellant filed a response. [GD20]
[12] On February 1, 2017 the Tribunal issued a notice of hearing setting this matter to be heard by way of videoconference on June 20, 2017. [GDOA]
[13] On February 8, 2017 the Appellant served a Notice of Constitutional Question (NCQ) pursuant to subsection 20(1)(b) of the Tribunal Regulations. [GD23]
[14] On May 12, 2007 the Tribunal determined that the requirement for service of a NCQ had been met. [GD28]
[15] On May 16, 2017 the Respondent filed the curriculum vitae of Andrew Williamson. [GD29]
[16] On June 19, 2017 the hearing was adjourned to July 24, 2017 because the Respondent’s counsel was not available on the scheduled hearing date due to an urgent family matter. [GDOB]
[17] On July 6, 2017 the Respondent filed a copy of the decision of the Tribunal General Division in S.S. v Minister of Employment and Social Development 2017 SSTGD 124959 in which a Charter challenge comparable to the challenge in this case was dismissed.
[18] The hearing proceeded by way of videoconference on July 24, 2017.
[19] On July 26, 2017 the Appellant filed post-hearing documents which consisted of copies of the materials that were linked to in her record.
Relevant statutory provisions
[20] The following statutory and regulatory provisions are relevant to this appeal.
Canada Pension Plan (CPP)
[21] Subsection 44(1)(d) of the CPP provides that a survivor’s pension shall be paid to the survivor of a deceased contributor who has made contributions for not less than the minimum qualified period if the survivor has reached sixty-five years of age, or in the case of a survivor who has not reached sixty-five years of age,
- (A) had at the time of death of the contributor reached thirty-five years of age,
- (B) was at the time of death of the contributor a survivor with dependent children, or
- (C) is disabled.
[22] Subsection 58(1) of the CPP provides that unless the survivor was at the time of death of the contributor a survivor with dependent children or unless he is disabled, the amount of the survivor’s pension shall be reduced by 1/120 for each month by which the age of the survivor at the time of the death of the contributor is less that forty-five years.
[23] Subsection 113.1(1) of the CPP provides that once every three years after 1997, the Minister of Finance and ministers of the Crown from the included provinces shall review the financial state of the Canada Pension Plan and may make recommendations as to whether benefits or contribution rates or both should be changed.
Canadian charter of rights and freedom (Charter)
[24] Section 1 of the Charter 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.
[25] Subsection 15(1) the Charter provides that 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.
[26] Subsection 15(2) of the Charter provides that subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Constitution Act
[27] Section 52 of the Constitution Act provides that the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, the extent of the inconsistency, of no force and effect.
Issues
[28] Do subsection 44(l)(d) and subsection 58(1) of the CPP discriminate against the Appellant on the basis of age contrary to subsection 15(1) of the Charter?
[29] To determine this issue requires assessing the following:
- Is the decision of the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 (the Law decision) binding on the Tribunal?
- If the Law decision is not binding, then the Tribunal must make its own determination whether subsection 44(1)(b) and subsection 58(1) of the CPP discriminate against the Appellant on the basis of age contrary to subsection 15(1) of the Charter.
- If the Tribunal determines that the impugned provision violates subsection 15(1) of the Charter, then the Tribunal must also determine whether the infringement can be justified as reasonable in a free and democratic society under section 1 of the Charter.
[30] The Tribunal decided that the Law decision is binding and that the appeal should be dismissed. The reasons for that decision follow.
Factual background
[31] There is no dispute concerning the underlying facts. The Appellant was the spouse of the deceased contributor and she was 30 years old at the time of his death. She is not disabled and she does not have disabled children. On the plain reading of subsection 44(1)((d) of the CPP she is not entitled to a CPP survivor’s pension. She can only succeed if this provision is found to be an infringement of her Charter rights.
Appellant’s evidence
[32] The Appellant stated that everyone deserves a survivor’s pension for a period of time since this is a difficult time in everyone’s life and everyone needs help.
[33] She testified that she has health problems and sees a psychologist: she has signs of depression and her health has been affected “in a big way.” She stated this is a difficult time in everyone’s life. She also stated the amount that she would have been given if she were 35 (less than $3 a month) is more demeaning than not being given any benefit at all.
[34] She stated that “crawling out of bed” to make applications was one of the hardest things that she ever had to do: she was initially denied everything and she couldn’t understand what is “different about me.” She couldn’t understand what difference her age made. She not only lost a second income, but also her husband and best friend.
[35] Although she was initially denied veteran benefits, she has now been approved for veteran survivor benefits, vocational services benefits, and a last post fund.
Expert evidence
[36] The Tribunal reviewed Mr. Williamson’s curriculum vitae [GD29) and determined that he was qualified as an expert witness with respect to the history and background of the CPP.
[37] The Tribunal has also reviewed his expert report [GD19]
[38] Mr. Williamson reviewed the historical background of the CPP and indicated that although it is primarily a retirement income plan it also includes disability income replacement, disabled contributor’s child benefits, orphan’s benefits, a death benefit, a post-retirement benefit and a survivor’s benefit: the survivor’s benefit is paid to a surviving spouse or common-law partner, has a contributory requirement, and is contingent on the status of the survivor.
[39] A survivor under 35 years of age who does not have dependent children or who is not disabled may be considered the survivor but is not entitled to a survivor’s pension until they reach 65 years of age. The amount of the survivor’s pension payable to survivors who have not reached age 65 is composed of two parts: a flat rate plus an earnings-related amount equal to 37.5% of the deceased contributor’s retirement pension, reduced by 1/120 for any month a non-disabled survivor without children is under the age of 45: no amount is payable at age 35 since the amount is reduced by 120/120.
[40] The CPP was introduced in 1966 and survivor’s benefits were included as part of the initial plan. The rational for inclusion was to cover the contingency of the death of a contributor (at that time usually a male breadwinner) and the financial need of a survivor (at that time usually a widow who was not in the workforce). It recognized the financial dependency of most female spouses and also that it was fair to return some portion of the contributions that had been made by the deceased contributor. It was meant to provide some degree of protection to a surviving spouse: it was not intended to cover all financial needs and was to be supplemented by private savings, insurance, and pensions etc.
[41] The August 1964 White Paper described the need for coverage as being: “related to the level of earnings for which they have been accustomed”. In describing the “Pensions for Widows under Age 65”, the report stated that “…younger widows without children dependent on them can reasonably be expected to take up full-time employment…” [see GD19-9]
[42] Mr. Williamson referred to the following statement made by the Honourable Judy LaMarsh the Minister of National Health and Welfare in the House of Commons at the time of introductions of the CPP:
When the head of a family dies and leaves his widow with young children, she will be provided with a pension to help her through these difficult years. A widow 35 years old or over, even though she has no dependent children…often finds it difficult to re-enter the labour force and obtain work. There is provision for a pension for her; and the older she is and thus the less likely to be self-supporting, the greater her need and therefore the higher is her pension [GD19-10]...
The philosophy on which pensions are paid to widows under 65 is that a full pension should be available to those who cannot easily obtain employment... Young widows in their 20's and 30's usually have little difficulty in finding employment and, of course, many of them remarry.
I am sure my hon. friend is aware that most women of 35 years of age are able to obtain some sort of employment. The most expensive benefits in the whole plan are those benefits for survivors. This proposal was drafted on the premise that a woman aged 35 at the time of her husband’s death with no dependants would be able to obtain employment and contribute to her own subsequent pension. It is perhaps a change in our social approach that women are expected to stand on their own feet financially and make provision for the future the same way as men. [GD19-21 to 22]
[43] He further testified that the ability to obtain long-term self-sufficiency informed the payment structure under subsection 58(1) of the CPP. Individuals who have lost a CPP contributor at a young age are in a different point in their life cycle and have a greater chance to achieve financial security over the long term. It was recognized that factors such as dependent children and disability make it more difficult for the survivor to re-enter the labour factor.
[44] He stated that there have been changes in the CPP survivor pensions provisions over time and that they have evolved to take into account societal changes for example: originally widows and widowers were treated differently; in 1986 common-law partners for at least one-year were treated as survivors; and in 2000 a new definition of common-law partner to recognize same sex common-law partners was introduced - but the 1/120 reduction factor for each month under the age of 45 has always been in the CPP.
[45] This design of the CPP survivor provisions is based on three key assumptions 1) that older individuals in Canada continue to experience greater challenges to obtaining and/or maintaining stable employment than younger individuals, 2) parents, especially single parents, continue to experience greater challenges to obtaining and/or maintaining stable employment than childless individuals, and 3) individuals with a disability continue to experience greater challenges to obtaining and/or maintaining stable employment than individuals without disabilities.
[46] In response to questions from the Appellant he stated that there were initially no statistical data to decide who is less likely to be self-supporting: this was based on an assumption that a younger person is in a different stage of her life cycle and has decades in front of her to attain self-sufficiency - the CPP does not look at specific circumstances because administratively it is very difficult to try and take into account specific circumstances.
[47] The CPP is looking at the survivor’s long-term ability to re-enter and remain in the workforce and that a younger person has more time to participate: the needs of an individual survivor are not considered (other than disability and having a dependent child) – the design of the plan is based on the “general algorithm” that a younger survivor has a longer time to obtain self-sufficiency. It is not questioning the emotional impact of the death of a loved one: it is looking at the long-term perspective and that a younger survivor has a longer time to be engaged in the workforce.
Appellant’s reply evidence
[48] The Appellant testified in reply that older people have far less debt; have more assets; and that they have less need for the benefit. She stated that younger survivors have student loans and mortgages.
Appellant’s submissions
[49] The Appellant’s written submissions and supporting documents are set out in GD14, GD20 and GD33.
[50] At the hearing she submitted:
- She was a caregiver for her late husband and this has affected her health: the CPP provisions do not take into account the public health considerations relating to a spouse’s death;
- Feeling excluded and discriminated against can affect a survivor’s health and she feels that she has been demeaned because there is no difference between her grief and needs and those of an older survivor;
- She was self-sufficient before she assumed the role of a caregiver;
- The policy does not take into account the lengthy history of contributions made by her deceased spouse and that he died a service related death because of asbestos in the workplace;
- Older survivors have less debt and have had more time “to plan and get ready.”
- Older survivors are just as likely to get remarried.
- The policy should change because it fails to be compassionate and recognize the younger survivor’s grief and need: even if the need is for a shorter time.
- Her position is that the way the CPP benefits are structured discriminates on the basis of age not only with respect to entitlement (for those under 35) but also with respect to the amount paid (for those under 45).
Respondent’s submissions
[51] The Respondent`s written submissions and supporting documents are set out in GD17 to GD19.
[52] The Respondent also relied on the June 20, 2017 decision of the Tribunal in S.S v Minister of Employment and Social Development 2017 SSTGD 124959. (GD32)
[53] Mr. Junaid, counsel for the Respondent, submitted that the Appellant’s position is flawed because the Tribunal is bound by the Law decision of the Supreme Court of Canada: that decision looked at the same CPP provisions; the same ground of discrimination (the enumerated ground of age); had virtually the same facts in that both Appellants were 30 years old at the time of the deceased contributor’s death; and the Supreme Court found that the impugned provisions do not infringe the Charter.
[54] The evidence does not reach the high bar required in order to revisit an otherwise binding constitutional decision of the Supreme Court.
[55] He stated that the impugned provisions are not designed to remedy immediate financial need: they are designed to enable older survivors to meet their long term needs and recognize that as one gets older it is increasingly difficult to find and maintain employment - they are intended to allocate funds to those that are most vulnerable.
[56] He referred to paragraphs 101 to 106 of the Law decision as follows:
101 As the appellant states, reflected in the age distinctions in the survivor's pension provisions of the CPP appears to be the notion that young persons experience fewer impediments to long-term labour force participation and are generally in a better position than older persons to replace independently over the long run as a working member of Canadian society the income of a deceased spouse. It seems to me that the increasing difficulty with which one can find and maintain employment as one grows older is matter of which a court may appropriately take judicial notice...
102 The answers to the questions which I posed above with respect to human dignity thus lie, in part, in the aim and effects of the legislation in providing long-term financial security for Canadians who lose a spouse, coupled with the greater flexibility and opportunity of younger people without dependent children or disabilities to achieve long-term security absent their spouse. Yes, the law imposes a disadvantage on younger spouses in this class. But it is unlikely to be a substantive disadvantage, viewed in the long term. The law on its face treats such younger people differently, but the differential treatment does not reflect or promote the notion that they are less capable or less deserving of concern, respect, and consideration, when the dual perspectives of long-term security and the greater opportunity of youth are considered. Nor does the differential treatment perpetuate the view that people in this class are less capable or less worthy of recognition or value as human beings or as members of Canadian society...
103 Another factor supporting the view that the impugned CPP provisions do not violate essential human dignity is the clear ameliorative purpose of the pension scheme for older surviving spouses...
104 The challenged legislation simply reflects the fact that people in the appellant's position are more able to overcome long-term need because of the nature of a human being's life cycle. Those who are younger when they lose a spouse are more able to replace the income lost from the death of a spouse...
105 In referring to the existence of a correspondence between a legislative distinction in treatment and the actual situation of different individuals or groups, I do not wish to imply that legislation must always correspond perfectly with social reality in order to comply with s.15(1) of the Charter. The determination of whether a legislative provision infringes a claimant's dignity must in every case be considered in the full context of the claim...
106 Under these circumstances, the fact that the legislation is premised upon informed statistical generalizations which may not correspond perfectly with the long-term financial need of all surviving spouses does not affect the ultimate conclusion that the legislation is consonant with the human dignity and freedom of the appellant...
[57] Mr. Junaid stated that the Law decision conclusively disposed of identical issues to those raised in this case and that there was nothing to support that it should not be followed.
[58] He also stated that there is no evidence as to how the “lack of a public health perspective” in the CPP provisions constitutes discrimination under section 15 of the Charter or how such an approach would have changed the Law decision. Younger people are generally in a better position to obtain and maintain long-term employment, there are less vulnerable, and they have a longer life cycle ahead of them.
[59] Mr. Junaid further submitted that even without the Law decision the Charter challenge fails the two part analysis enunciated in the decisions of the Supreme Court of Canada in Withler v. Canada, 2011 SCC 12(the Withler decision) and Kahkewistahaw First Nation v. Taypotat, [2015] 2 SCR 548 (the Taypotat decision). He acknowledged that the Charter challenge meets the first part of the analysis since there is a facial distinction based on age but stated that it does not meet the second discrimination part.
[60] Mr. Junaid further argued that although there is no need for a section 1 Charter analysis, the impugned provision would be justified under section 1 of the Charter because there is a pressing and substantial objective to provide long-term support for survivors as part of the overall objective of the CPP; the distinction is rationally connected to the objective based on need; and there is a minimal impairment based on a standard of reasonableness not perfection since the Appellant will still be entitled to receive the benefit when she reaches 65 or if she becomes disabled.
Analysis
[61] The threshold issue in this appeal is to determine whether the Law decision is binding on the Tribunal.
[62] The decisions of the Supreme Court of Canada in Canada (Attorney General) v Bedford, 2013 SCC 72 (the Bedford decision) and Carter v. Canada (Attorney General), 2015 SCC 5 (the Carter decision) provide guidance as to the circumstances under which the Tribunal can revisit the conclusions reached by the Supreme Court of Canada in an analogous case.
[63] In the Bedford decision Chief Justice McLaughlin provided the following guidance for trial judges which is also applicable to Tribunal Members:
[38] Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies...
[42] In my view, a trial judge can consider and decide arguments based on Charterprovisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in circumstances or evidence that fundamentally shifts the parameters of the debate.
[64] In the Carter decision the Supreme Court provided the following additional guidance:
[43] Canada and Ontario argue that the trial judge was bound by Rodriguez and not entitled to revisit the constitutionality of the legislation prohibiting assisted suicide. Ontario goes so far as to argue that “vertical stare decisis” is a constitutional principle that requires all lower courts to rigidly follow this Court’s Charter precedents unless and until this Court sets them aside.
[44] The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”...
[65] In the Law decision a 30 year-old woman without children or disability was denied survivor’s benefits under the CPP. She argued that the age distinctions under subsection 44(1) (d) and subsection 58(1) of the CPP discriminate against her on the basis of age contrary to subsection 15(1) of the Charter. The Supreme Court of Canada dismissed the Charter appeal. The facts and issues raised in the Law decision are virtually identical to the issues raised by the Appellant in this case.
[66] The Appellant takes the position that the issue as to the impugned provisions failing to take into the “public health perspective” of the loss of a spouse raises a new issue that distinguishes this case from the Law decision. The Tribunal disagrees.
[67] There is no question that there are often health consequences to the loss of a spouse and that these affect younger survivors as well as older survivors. This does not, however, change the underlying fundamental reality that younger people have more time to adjust and a longer working life expectancy. As the Supreme Court stated in Law this is “because of the nature of a human being's life cycle.” The potential public health consequences do not raise a new legal issue and it does not constitute a change of circumstances that fundamentally shifts the parameters of the debate.
[68] The Tribunal has determined that it is bound by the Law decision.
[69] Having determined that it is bound by the Law decision, there is no need for the Tribunal to undertake a subsection 15(1) Charter analysis. Nor is it necessary for it to make a determination as to whether the alleged infringement can be justified as reasonable in a free and democratic society under section 1 of the Charter.
Conclusion
[70] The Charter challenge and the appeal are dismissed.