Other Canada Pension Plan (CPP)

Decision

[1] Sections 44(1) and 46 of the Canada Pension Plan (CPP) do not infringe the Claimant’s rights under section 15(1) of the Canadian Charter of Rights and Freedoms (the Charter). The Claimant is not entitled to an increased amount for her CPP retirement pension.

Overview

[2] The Claimant disputes the amount of her CPP retirement pension. She challenges the constitutional validity of sections 44(1) and 46 of the CPP.

[3] Section 44(1) lists the benefits payable under the CPP and section 46 provides how the retirement benefits are calculated.

[4] Paragraph 44(1)(a) of the CPP states that a retirement pension shall be payable to a contributor who has reached 60 years of age. Paragraph 44(1)(d) states that a survivor’s pension is payable to the survivor of a deceased contributor who has made sufficient contributions to the CPP. Under the CPP, a survivor of a deceased contributor is a person who was cohabiting with the deceased contributor at the time of his or her death and had so cohabited for a period of at least one year. If there is no common-law partner, the survivor is the person who was married to the deceased contributor at the time of his or her death. If there is no common-law or married partner at the time of death, there is no survivor.^{Footnote 1}

[5] The Claimant was 69 years old when she started to receive a CPP retirement pension in May 2014. The amount was calculated to be $1,021.33 with an adjustment for starting the pension at age 69. She states that she is entitled to an increased retirement pension because she has never married or lived in a common-law relationship. She argues that she is being discriminated against on the analogous ground of marital status.

Issues

1. Do sections 44(1) and 46 of the CPP discriminate against the Claimant based on marital status contrary to section 15(1) of the Charter?
2. If so, can the violation be justified as reasonable in a free and democratic society under section 1 of the Charter?

Analysis

[6] The Canadian constitution is the supreme authority regarding any other Canadian law. The Charter is part of the constitution. It protects human rights by guaranteeing equality.

[7] Section 15(1) of the Charter provides that every individual is equal before and under the law and has the right to the equal protection and 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.

[8] The Supreme Court of Canada (SCC) has set out a two-part test for assessing a section 15(1) claim:^{Footnote 2}

1. Does the law create a distinction based on an enumerated or analogous ground?
2. If so, does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

[9] This assessment requires a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on a claimant because of his or her membership in an enumerated or analogous group. It recognizes that persistent systemic disadvantages have limited the opportunities available to members of certain groups in society. It seeks to prevent conduct that continues those disadvantages. Analysis under section 15 of the Charter focuses on whether legislation discriminates by drawing distinctions that perpetuate a disadvantage or prejudice, or that create a stereotype.^{Footnote 3}

Is there a distinction based on the analogous ground of marital status?

[10] The first step in the s. 15(1) analysis is to determine whether the law, on its face or in its apparent effect, creates a distinction because of an enumerated or analogous ground. In this case, the question is whether the failure to provide the Claimant with an increased retirement pension because of her marital status denies her a benefit that others receive or places a burden on her that others do not bear.

The Claimant’s position

[11] She receives the same amount for her retirement pension as a person of the same age who made the same CPP contributions and was married or in a common-law relationship when they retired. Because of this, she argues that paragraph 44(1)(d) of the CPP discriminates based on marital status. Only contributors who are married or in a common-law relationship at the time of their death, benefit from the survivor’s pension. Never married and never common-law partners do not. As a result, they are discriminated against because they receive overall pension benefits of less value.

[12] She compares the CPP with what Kelly McKeating, who gave expert actuarial evidence, referred to as non-subsidized private pension plans. Under those plans, an individual who is not married or in a common-law relationship at the time they retire, receives a higher retirement pension than an individual who was married or in a common-law relationship. The amount of the increase is based on actuarial calculations that compensate the non-married not common-law partner for not benefiting from the survivor’s pension.

[13] She is receiving benefits of less value and wants an increased retirement pension based on actuarial calculations. Based on the actuarial report from Kelly McKeating, the Claimant claims a lump sum payment of $8,860 for the shortfall up to December 31, 2018 and an increase in her pension payments by $148 monthly, indexed to inflation, starting January 1, 2019.^{Footnote 4}

Minister’s position

[14] There is a fundamental flaw in the Claimant’s position. She is relying on a contingency that occurs only upon a future event, namely, her not being married or in a common-law relationship at the time of her death. She acknowledges that she is receiving the same retirement pension as anyone else her age and who has made equivalent CPP contributions. The essence of her position is that her estate will be deprived of the survivor benefit. However, the SCC has stated that an estate cannot have Charter rights. This is because an estate is just a collection of assets and liabilities of a person who has died. It is not an individual and has no dignity that can be infringed.^{Footnote 5}

[15] Further, the distinction that the Claimant relies on is artificial and distinguishable from a common-law relationship that the SCC determined to be an analogous ground in the Miron v Trudel decision.^{Footnote 6} Common-law relationships are relationships that have some permanence, while the Claimant is relying on a person’s marital status at a snap shot in time, namely, when they retire. Persons who are neither married nor in a common-law relationship when they retire may have previously been, or may in the future, be in such a relationship. A person’s status at a snap shot in time that may change in the course of common life events, cannot be said to touch their essential dignity and worth.

My Findings

[16] The Claimant has to show that she is denied a benefit available to others or she must meet a burden greater than others must meet, because of a personal characteristic that falls within the enumerated or analogous grounds of s.15(1).^{Footnote 7}

[17] The Claimant argues that she suffers from discrimination on the basis of the analogous protected ground of marital status. An analogous ground is based on “a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity”^{Footnote 8}

[18] Based on the numerous academic and Statistics Canada studies that the Claimant has presented, I accept that persons who have never married or lived in a common-law relationship are potentially members of an analogous group that is worthy of protection against discrimination under s. 15(1).

[19] In Miron v Trudel, the SCC discussed common-law relationships and stated:

First, discrimination on the basis of marital status touches the essential dignity and worth of the individual in the same way as other recognized grounds of discrimination violative of fundamental human rights norms. Specifically, it touches the individual's freedom to live life with the mate of one's choice in the fashion of one's choice. This is a matter of defining importance to individuals. It is not a matter which should be excluded from Charter consideration on the ground that its recognition would trivialize the equality guarantee.^{Footnote 9}

[20] This statement should also apply to persons who choose to not marry or live in a common-law relationship. This can be a matter of defining choice to such individuals and should not be excluded from Charter consideration.

[21] The Minister argues that persons who are not married or in a common-law relationship when they retire may have been in such relationships before they retired, and may enter into such a relationship after they retire. This may be true, but the same is also true with respect to common-law relationships which the SCC found to have “personal, immutable characteristics …present, in attenuated form.”^{Footnote 10}

[22] It is not enough, however, for the Claimant to establish that she is a member of a group that may be subject to discrimination. She must also establish that she has been subject to differential treatment because of her membership in that group.^{Footnote 11}

[23] The Claimant is conflating two dates and contingencies.

[24] First, she relies on the retirement pension at the date of retirement. However, she acknowledges that she receives the same retirement benefit as any other contributor who has the same CPP contribution history and started to receive the pension at the same age as she did.

[25] Second, she relies on the survivor’s pension at the date of her death. However, she will not receive the survivor’s pension. She argues that her estate will be denied this benefit, but an estate does not have Charter rights.^{Footnote 12} Further, the CPP survivor’s benefit goes to a survivor (if there is one) and not the contributor’s estate. The Claimant is advancing a Charter claim on behalf of a non-existent person as of some indefinite future date.

[26] The Claimant wants to replace a survivor’s pension by an increased retirement pension in the way that individuals in her situation would receive an increased retirement pension under a non-subsidized private plan. However, the CPP is not a non-subsidized pension plan. Its purpose is to provide a minimum level of financial protection against loss of earnings normally associated with the retirement, disability, or death of a wage earner.^{Footnote 13} It is a social insurance plan of national scope and by its very nature there is a significant element of cross-subsidization.^{Footnote 14} The cross-subsidies flow from:

• single contributors to married or common-law contributors,
• the able-bodied to the disabled,
• younger to older survivors,
• those without children to children who become orphans or are
children of disabled contributors,
• employers and the self-employed to employees, and
• one generation to another

[27] The Claimant objects to the cross-subsidization from single contributors to married and common-law contributors, but does not object to the other cross-subsidizations. She wants the CPP retirement provisions to be designed to meet her specific needs and wants them to be crafted in the same fashion as those for a private non-subsidized insurance plan. However, the CPP is not supposed to meet everyone’s needs, but rather to provide partial earnings replacement in certain circumstances. Contributions made to the CPP throughout a person’s working life do not always translate into benefits. It may be that for some applicants, a different set of rules or conditions for certain benefits might be preferable, but the CPP cannot meet the needs of all contributors in every conceivable circumstance, nor is it designed to do that.^{Note de bas de page 15}

[28] I find that the Claimant has failed to establish a distinction under section 15(1) of Charter with respect to the analogous ground of marital status.

[29] Since the Claimant has not established a distinction based on an analogous or enumerated ground, she cannot establish a discriminatory distinction. Therefore, I do not need to address step two of the section 15(1) Charter test as to the existence of discrimination.

Section 1 of the Charter

[30] 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. Since I have not found a Charter violation, I do not need to decide if any violation can be justified under section 1 of the Charter.

Conclusion

[31] The appeal is dismissed