Other Canada Pension Plan (CPP)

Decision

[1] The constitutional challenge and appeal are dismissed.

[2] The Appellant, L. M., cannot receive a Canada Pension Plan (CPP) survivor’s pension before January 1, 2019. This decision explains why I am dismissing the appeal.

Overview

[3] The Appellant was born in September 1963. Her spouse passed away in July 1998, when she was two months shy of her 35^th birthday.

[4] The Appellant applied for a CPP survivor’s pension. The Minister of Employment and Social Development (Minister) dismissed her application in September 1998. The law at that time did not allow her to collect a survivor’s pension because she was not 35 years old when her spouse passed away, she did not have children, and she was not disabled.^{Footnote 1}

[5] The Appellant says she again applied for a survivor’s pension when she turned 45. Her application was denied. The law at that time did not allow her to collect a survivor’s pension because she did not have children, and she was not disabled.^{Footnote 2}

[6] The Minister wrote to the Appellant on January 4, 2019. The Minister advised her that the law had changed as of January 1, 2019. People under the age of 35 at the time of their spouse’s death were no longer required to have a dependent child or be found disabled in order to receive a survivor’s pension. The Minister advised the Appellant she might be eligible for a survivor’s pension. They provided the Appellant with an application form.^{Footnote 3}

[7] The Minister received the Appellant’s application for a survivor’s pension on January 25, 2019.^{Footnote 4}

[8] The Minister awarded the Appellant a survivor’s pension with a January 2019 start date. The Appellant did not agree with the Minister’s decision. She believed the Minister should have paid her a survivor’s pension going back to August 1998, the month after her spouse passed away.^{Footnote 5}

[9] The Minister wrote to the Appellant in July 2019. The Minister advised the Appellant that the law did not allow it to pay her a survivor’s pension before January 2019.^{Footnote 6} The Appellant disagreed with the Minister’s decision. She appealed the decision to the Social Security Tribunal’s General Division.

Tribunal proceedings

[10] The Tribunal’s General Division held a videoconference hearing and dismissed the appeal on November 14, 2019. The General Division decided that the CPP did not allow the Appellant to receive a survivor’s pension before January 2019.

[11] The Appellant appealed the General Division’s decision to the Tribunal’s Appeal Division. The Appeal Division allowed the appeal on June 22, 2020. The Appeal Division decided that the General Division failed to provide the Appellant with a fair process because it did not consider the Appellant’s arguments that her rights were violated under the Canadian Charter of Rights and Freedoms (Charter). The Appeal Division returned the appeal to the General Division for reconsideration with a direction of whether the Appellant’s Notice of Constitutional Question (NCQ) was sufficient for the Charter claim to be decided.

[12] The appeal came before me. The Minister disagreed that the Appellant’s NCQ was sufficient for the Charter claim to be decided. The Minister argued that the appeal should be dismissed because the Supreme Court of Canada held in Law v Canada (Minister of Employment and Immigration) ^{Footnote 7} that the CPP provisions allowing differential treatment in eligibility for a survivor’s pension did not violate the Charter.^{Footnote 8}

[13] I decided that the Appellant’s NCQ was sufficient for the Charter claim to be decided. I said that one of the problems with the Appellant’s case is that I was bound to follow the Supreme Court of Canada’s decision in Law. However, the Supreme Court of Canada in Carter v Canada (Attorney General)^{Footnote 9} and Canada (Attorney General) v Bedford^{Footnote 10} ruled that decision makers may reconsider settled rulings 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. The Appellant seemed to have a difficult case, especially because of the Supreme Court of Canada’s decision in Law. But the Supreme Court of Canada’s decisions in Carter and Bedford seemed to have opened the door for appellants to distinguish binding precedents in a limited set of circumstances. I decided to give the Appellant the opportunity to deliver a Charter record and I advised her to deliver a complete record because I could dismiss her appeal without a full hearing if I found that her arguments had no merit.^{Footnote 11}

[14] The Appellant delivered a Charter record. I reviewed the record and found that the Appellant had produced enough evidence that could show that she has raised a new legal issue and a change in circumstances or evidence that fundamentally shifted the parameters of the debate. I did not decide that the Appellant had succeeded in her appeal. However, I decided that her record had raised enough issues that it required the Minister to deliver a responding record.^{Footnote 12}

[15] I received the Minister’s responding record. I also delivered another interlocutory decision giving the Appellant another chance to serve her NCQ on provincial and territorial Attorneys General.^{Footnote 13} The appeal proceeded to a full videoconference hearing on September 26 and 27, 2022.

Relevant statutory provisions

[16] The Appellant says that paragraph 44(1)(d) and subsection 58(1) of the CPP are unconstitutional.

[17] At the time of the death of the Appellant’s spouse in July 1998, paragraph 44(1)(d) of the CPP said that individuals could not collect a survivor’s pension if they were under the age of 35, they did not have children, and they were not disabled.

[18] Paragraph 44(1)(d) of the CPP was changed in 2018. The changes removed the requirement that individuals under the age of 35 at the time of their spouse’s death have a dependent child or be found disabled in order to receive a survivor’s pension. This change was effective January 1, 2019.

[19] At the time of the death of the Appellant’s spouse, paragraph 58(1)(a) of the CPP said that the survivor’s pension amount for survivors under age 45 who did not have dependent children or who were not disabled was reduced by 1/120^th for each month that the survivor was under the age of 45 at the time of the death of the spouse. The practical effect of this provision was that a survivor’s pension would be reduced to zero if the survivor was 35 years old at the time of the death of their spouse.

[20] Paragraph 58(1)(a) of the CPP was amended as of January 1, 2019. Paragraph 58(1)(a.1) removed the reduction so that all survivors received an unreduced pension amount.

21] These CPP amendments were one of several amendments that came from the Triennial Review process set out in subsection 113.1(1) of the CPP. Subsection 113.1(1) of the CPP requires the Minister of Finance from the Federal Government, Provinces, and Territories to review the financial state of the CPP every three years.

[22] Subsection 114(4) of the CPP says that major amendments to the CPP require the approval of two-thirds of the provinces with two-thirds of the population.

Relevant constitutional provisions

[23] 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.

[24] Subsection 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 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.

[25] 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.

[26] 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, to the extent of the inconsistency, or no force and effect.

Appellant’s arguments

[27] The Appellant argued that:

• Paragraph 44(1)(d) and subsection 58(1) of the CPP are unconstitutional. She says they violated her equality rights under subsection 15(1) of the Charter on the basis of age, her not having children, and not being disabled at the time of her spouse’s death in her NCQ.^{Footnote 14} At the hearing she said she was only arguing age as a ground for discrimination.^{Footnote 15}
• The qualifying conditions for a survivor’s pension at the time of her spouse’s death were irrelevant and discriminatory. The amendments removing these qualifying conditions are an admission of a Charter breach.^{Footnote 16}
• The CPP allowed for the rounding up of a retirement pension amount. Since she was almost 34 when her spouse passed away, she should have been considered 35 years old and received a survivor’s pension.^{Footnote 17}

[28] The Appellant asked that I allow the appeal and award her a survivor’s pension from 1998 onward in the amount of $84,425.36.^{Footnote 18}

Minister’s arguments

[29] The Minister argued that I must dismiss this appeal because:

• I must follow the Supreme Court of Canada’s decision in Law. The Supreme Court of Canada ruled that the age-based distinction for a survivor’s pension did not violate subsection 15(1) of the Charter.^{Footnote 19}
• The Appellant did not meet the threshold to set aside the Law decision. She did not raise a new legal issue or show that there was a change of circumstances or evidence that fundamentally shifted the parameters of the debate as required by the Supreme Court of Canada in Carter and Bedford.^{Footnote 20}
• The Appellant failed to show a violation of her equality rights under subsection 15(1) of the Charter. She failed to show that paragraph 44(1)(d) of the CPP created a distinction based on an enumerated or analogous ground under subsection 15(1) of the CPP, and she failed to show whether the distinction had the effect of reinforcing, perpetuating, or exacerbating disadvantage.^{Footnote 21}
• Even if the Appellant showed that paragraph 44(1)(d) of the CPP violated subsection 15(1) of the Charter, the limitation of the effective date of payment to January 1, 2019 is reasonably and demonstrably justified in a free and democratic society under section 1 of the Charter.^{Footnote 22}

Issues

[30] Do paragraph 44(1)(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?^{Footnote 23}

[31] To determine this issue requires assessing the following:

1. Is the Law decision binding on me?
2. If the Law decision is binding on me, I will dismiss the Appellant’s constitutional appeal. Then I will decide whether the Appellant is eligible to receive a survivor’s pension before January 1, 2019.
3. If the Law decision is not binding, then I must make my own determination on whether paragraph 44(1)(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.
4. If I determine that paragraph 44(1)(d) and subsection 58(1) of the CPP violate subsection 15(1) of the Charter, then I must also determine whether the infringement can be justified as reasonable in a free and democratic society under section 1 of the Charter.

Reasons for my decision

[32] I am dismissing the Appellant’s constitutional appeal because I have to follow the Law decision. The Appellant did not meet the threshold to set aside the Law decision. She did not raise a new legal issue or show that there was a change of circumstances or evidence that fundamentally shifted the parameters of the debate as required by the Supreme Court of Canada in Carter and Bedford.

[33] I reached this decision after considering:

• The Appellant’s evidence.
• The evidence of the Minister’s expert.
• The case law.

The Appellant’s evidence

[34] The Appellant testified that she received a death benefit after her spouse passed away. She also applied for a survivor’s pension. However, her application was rejected because she was under 35 years of age, she did not have children, and she did not have a disability. She applied for a survivor’s pension again at the age of 45, but her application was again rejected. She gave some thought to appealing for retroactive pay. But she decided not to appeal at that time. She decided to wait until she was 65 to collect her survivor’s pension.^{Footnote 24}

[35] The Appellant confirmed that she applied for a survivor’s pension in January 2019. She confirmed that she received a letter from the Minister before making the application. She began receiving payments as of January 2019. But she believes she is eligible for back pay to 1998 because she was discriminated against due to her age. The Appellant said she took a payroll course from 2016 to 2018. She learned while taking that course that she was going to get a notice about her eligibility for a survivor’s pension. She would have applied for a benefit and launched an appeal even if she did not receive a letter from the Minister.

[36] The Appellant says she experienced financial hardship after her husband died. She declared bankruptcy. She said that the purpose of a survivor’s pension is to provide protection to survivors. But no one provided such protection to her after her husband passed away. She says the restrictions on age, not having children, and not being disabled were irrelevant considerations for eligibility for a survivor’s pension.

[37] The Appellant provided a partial article from the Globe and Mail that was dated December 13, 2017. I reviewed the complete newspaper article that is found in the Minister’s Charter record.

[38] The article discussed changes to the CPP that would mean that survivors, regardless of age, would receive full survivor’s benefits, changing five decades of federal policy.

[39] The article stated that federal research showed that previous rules disqualified about one-third of survivors from immediate benefits.

[40] The article also stated that:

For decades, the government maintained the age restrictions reflected the fact that a survivor with no children or disability ought to be able to adapt financially to the loss of a partner by going back to work. The benefits were paid out when the surviving spouse turned 65.

An official from the Finance Department said the changes recognized survivors of any age face financial difficulties following the death of the spouse.^{Footnote 25}

[41] The Appellant says that society has changed since Law, including woman participating more in the labour force.

Evidence of the Minister’s expert

[42] The Minister called Andrew Williamson as an expert witness. Mr. Williamson was qualified as an expert witness with respect to the legislative history and administration of the CPP program.

The purpose of the CPP

[43] Mr. Williamson testified about the purpose of the CPP. He said the CPP is a social insurance scheme. He quoted the August 1964 White Paper on the CPP:

The purpose of the Canada Pension Plan is to make reasonable minimum levels of income available at normal retirement ages, to people who become disabled and to the dependents of people who die. There will be scope for the continuation and extension of private pension plans to provide benefits over these minimum levels.^{Footnote 26}

[44] Mr. Williamson said the CPP was never intended to provide all the retirement income or survivors’ income that Canadians wished to have. He again referred to the 1964 White Paper on the CPP:

The Plan is comprehensive in the sense of covering as many people as is practicable. It is not intended to provide all the retirement income or survivors’ income which many Canadians wish to have. This is a matter of individual choice and, in the government’s view, should properly be left to individual savings and to private pension plans. . .^{Footnote 27}

[45] Mr. Williamson said that the purpose of the CPP is still the same as the purpose outlined in the 1964 White Paper.

[46] Mr. Williamson said that the CPP is financed through contributions from employers, employees, and the self-employed.^{Footnote 28}

[47] He discussed the concept of cross-subsidization of benefits. Like any group insurance plan, the CPP is funded through cross-subsidies. Cross-subsidization involves grouping contingencies together. Some people pay more into the CPP than they get out. While others get more out of the CPP then they pay in. There are generally two types of contingencies. The first contingency type involves the predictability related to retirement. The probability of an individual experiencing the contingency of retirement is relatively high. Another type of contingency is less predictable, and it involves disability and death. It is more difficulty to predict death and disability, as opposed to retirement. Cross-subsidization is implicit in each of these contingencies. Cross-subsidization means that some parties come out ahead and some do not. For example, cross-subsidies flow from the able-bodied to the disabled, and from single contributors to married or common-law contributors. ^{Footnote 29}

The CPP amendment process

[48] Mr. Williamson testified about the CPP amendment process. There are two types of amendments. The first type of amendment involves the federal government making unilateral changes to the CPP. The other type of amendment involves changes to the substance and stewardship of the CPP.

[49] The federal and provincial governments are joint stewards of the CPP. The federal government administers the CPP. However, the CPP says that major amendments require the approval of the federal government and the governments of at least two-thirds of the provinces with at least two-thirds of the population of Canada. Changes to the CPP requiring provincial approval, include the general benefits provided by the CPP, the classes of benefits provided by the CPP, the contribution rate, and the formulae for calculating the contributions and benefits payable under the CPP.^{Footnote 30}

[50] Section 113.1 of the CPP requires that the federal and provincial finance ministers review the CPP every three years in order to help ensure the CPP’s financial sustainability and to determine whether benefits or contribution rates need to be changed. Section 113.1 of the CPP requires the ministers to consider certain factors, such as the most recent actuarial report prepared by the Office of the Chief Actuary.^{Footnote 31} Section 115 of the CPP requires the Chief Actuary to prepare a report every three years in conjunction with the triennial review required under subsection 113.1 of the CPP.^{Footnote 32}

The purpose of the survivor’s pension

[51] Mr. Williamson said that the original rationale behind the survivor’s pension was that husbands were expected to be the primary financial providers for their families. While most married women were expected to be homemakers with children and either without employment or with low wage-earning occupations outside the home. Given this dependency on their husbands, it was assumed that the death of the husband created a financial need on the part of the survivor.^{Footnote 33}

[52] Mr. Williamson described the eligibility requirements for a survivor’s pension before January 1, 2019. He said there were “tranches of eligibility.” These tranches of eligibility included the following:

• Survivor’s who were under 35, had no dependent children, and were not disabled at the time of the contributor’s death were not eligible for a survivor’s pension. These survivors would have to wait until they were 65 to get a survivor’s pension.
• Survivor’s who were 35 to 45 and had no dependent children and were not disabled would see their survivor’s pensions reduced by 1/120^th for each month they were under the age of 45. The meant that this tranche of survivors would see their survivor’s pension benefits reduced to zero if they were 35 when their spouse died.
• For survivors who were eligible for a pension under the age of 65, the amount was calculated as the flat rate portion plus 37.5% of the imputed pension of the deceased contributor.
• Survivors who were under 35 and had dependent children at the time of their spouse’s death were eligible for a full survivor’s pension, so long as they had dependent children.
• Survivors who became disabled at any time under the age of 65 were eligible for a full survivor’s pension.
• At the age of 65 all survivor’s pensions were recalculated. The amount of the survivor’s benefit became wholly dependent upon the CPP contributions of the deceased spouse. The amount of the survivor’s pension at the age of 65 was calculated as 60% of the imputed retirement pension of the deceased contributor.

[53] Mr. Williamson said that when the survivor’s pension was enacted, it was presumed that those under 35 who had no children and were able bodied could go into the labour force and earn income. Mr. Williamson referred me to the following comment in Parliament made by the Honourable Judy LaMarsh, the Minister of National Health and Welfare, in 1964:

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 those difficulty 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 a 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 person.

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 employmentYoung widows in their 20’s or 30’s usually have little difficulty in finding employment and, of course, many of them re-marry.

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.^{Footnote 34}

Changes to the survivor’s pension that took effect in 2019

[54] Mr. Williamson said the survivor’s pension was changed as of January 1, 2019, under Bill C-74.^{Footnote 35} The conditions regarding age, not having children, and not being disabled were removed as a requirement to receive a survivor’s pension. Bill C-74 also amended subsection 58(1) of the CPP. Before 2019, subsection 58(1) of the CPP said that the survivor’s pension amount for survivors under 45 who did not have dependent children or who were not disabled was reduced by 1/120^th for each month that the survivor was under age 45 at the time of the death of the contributor. The changes to the CPP removed this reduction for the purpose of survivor’s pensions payable from January 2019 onward.^{Footnote 36}

[55] As of January 1, 2019, a full survivor’s pension is paid to every eligible survivor under 65, even if they do not have children or a disability. Any survivor is eligible for a full survivor’s pension, so long as the deceased spouse made sufficient CPP contributions.

[56] Mr. Williamson said the CPP was changed as result of the required triennial review by finance ministers. He said the original rationale behind the eligibility requirements for a survivor’s pension had been eroded. There had been a demographic shift. More women had entered the labour force. Two income families were more of the norm, and younger survivors are already working. We no longer had the landscape of one income families at the time of the CPP’s inception, but two income families. The original rationale was that there would be a financial shock when the spouse passed away because the wife would have little income at the time of the husband’s death. Now there was still a financial shock with two income households, and the CPP amendments were intended to address this shock.

[57] Mr. Williamson said the removal of the age-based restriction for a survivor’s pension was informed by long-term changes to women’s labour force participation. The labour force participation rate for women grew from 35.3% to 75.5% from 1966 to 1990, That rate grew from 75.5% to 81.1% from 1990 to 2005, and from 81.1% to 82.3% from 2005 to 2020. Mr. Williamson also said the gender gap in labour force participation had closed from 61.8 percentage points in 1966 to 7.8 percentage points in 2020. ^{Footnote 37}

[58] Mr. Williamson was asked why January 1, 2019 was the date the amendments came into force. He said January 1, 2019 was not considered a retroactive date. He said the Minister operated under the assumption that legislative changes are assumed to be prospective, meaning that they come into force in the future. The amendments were projected to receive royal assent in the autumn of 2018, and so a January 1, 2019 coming into force date made the most sense.

Further evidence provided by the Minister’s expert

[59] Mr. Williamson was asked why the government drew the line at age 35 in order to have been eligible for a survivor’s pension before January 1, 2019. Mr. Williamson answered that lines were drawn all over the CPP, including the age where a contributory period started and ended, the age that a dependant child could be eligible for a disabled contributor’s child benefit, and the age of eligibility for a retirement pension. It was inevitable that people, like the Appellant, would fall on the wrong side of the line.

[60] Mr. Williamson said that the choice of the age of 35 was not based on a magic formula. The choice involved value judgments made by legislators at the time of the enactment of the CPP. He said that the Canadian government looked at other pension schemes when it developed the CPP. The government did not have a great array of statistics as it does today. The Canada borrowed the 35-year age restriction from Sweden, as well as the sliding scale for survivor’s benefits found in subsection 58(1) of the CPP. The sliding scale for survivor’s benefits was based on the premise that survivors who were young enough and health enough could go back into the labour market.^{Footnote 38}

The Law decision is binding on me

[61] I am dismissing the Appellant’s constitutional appeal because the Supreme Court of Canada dealt with this issue in Law in 1999, and found that paragraph 44(1)(d) and subsection 58(1) of the CPP did not breach subsection 15(1) of the Charter. The Appellant did not meet the test set out in Bedford and Carter to allow me to depart from the Law decision.

[62] Tribunals have to follow cases from higher courts where a higher court has already dealt with the same facts and issues.

[63] The Supreme Court of Canada in Law dealt with a 30-year-old woman without children or disability who 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 discriminated against her 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 issued raised by the Appellant.

[64] The Supreme Court of Canada in Carter and Bedford ruled that decision makers may reconsider settled rulings in two situations where:

• a new legal issue is raised; and
• there is a change in circumstances or evidence that fundamentally shifts the parameters of the debate.

[65] These exceptions to the general rule that Tribunals may not reconsider settled ruling have been described as being narrow. These narrow exceptions are not a general invitation to reconsider binding authority on the basis of any kind of evidence. Appellants have a high threshold to meet in order to apply the exceptions set out in Carter and Bedford.^{Footnote 39} I agree with the Minister that the Appellant failed to meet this threshold.

[66] The Appellant failed to raise a new legal issue. The issues before me were similar to the issues raised in the Law decision.I also find that the Appellant failed to show a change in circumstances or evidence that fundamentally shifted the parameters of the debate.

[67] The Supreme Court of Canada in Bedford revisited a previous decision it made in 1990, which upheld the constitutionality on the prohibition of bawdy houses and communicating for the purposes of prostitution. The evidentiary record in Bedford contained research not available in 1990, which showed that the social, political, and economic assumptions contained in the previous Supreme Court of Canada decision were no longer correct.

[68] The Supreme Court of Canada in Carter revisited a previous decision in 1993, where it had ruled that a section of the Criminal Code, which prohibited the giving of assistance to commit suicide, was unconstitutional. The evidentiary record in Carter contained evidence that was not before the Supreme Court when it made its previous decision in 1993. This evidence included medical journals and book chapters regarding the legal and ethical positions with respect to assisted suicide, suicide statistics in Canada, historical information about the moral and legal prohibitions against suicide, information about palliative care, reports on health, and reports from law committees on euthanasia.

[69] In Bedford and Carter, the evidentiary record was richer and differed from what the Supreme Court of Canada had when it issued its previous decisions. New legal issues were raised in a different legal framework, and this is why the Supreme Court of Canada was not bound to follow its prior decisions.

[70] The Appellant in this case did not provide an evidentiary record that raised new legal issues in a different legal framework as was done in Bedford and Carter.

[71] The Appellant provided the Tribunal with an article from the Globe and Mail. In the article, a Finance Department official said that changes to the survivor’s pension recognized that survivors of any age faced financial difficulties following the death of the spouse. However, I agree with the Minister that this evidence was not really different from what was provided to the Supreme Court of Canada in Law. The Supreme Court of Canada referred to a report in Law that actually favoured extending survivor’s benefits to all spouses. The Supreme Court of Canada, like the Finance Department official, acknowledged that surviving spouses of all ages are vulnerable following the death of a spouse. However, the Supreme Court of Canada still found that the age restrictions were not unconstitutional.

[72] The Globe and Mail article also referred to research that showed that about one-third of survivors were disqualified from receiving immediate benefits because of the pre-2019 rules. I did not see such a reference to this research in Law. However, the Supreme Court of Canada was aware of the fact that young Canadians were deprived of CPP survivor’s benefits when it decided Law.

[73] The Appellant tried to distinguish the Law decision by saying that she is now an older widow. This argument does not distinguish the facts in Law from her circumstances. The Appellant was 34 years old when she applied for a survivor’s pension in 1998. The facts of her case are very similar to the facts the Supreme Court of Canada dealt with in the Law decision, where the Appellant was 30 years old when her husband passed away. The Appellant was 55 years old when the Minister awarded her a survivor’s pension in January 2019. I do not see how the Appellant can say that the CPP amendment created a new legal issue or fundamentally shifted the parameters of the debate. Were it not for the changes made to the CPP, she would have had to have waited until she was 65 years old to get a survivor’s pension.

[74] The Appellant also said that woman participate more in the labour force since Law was decided. I do not think this argument raises a new legal issue or shows that there was a change of circumstances or evidence that fundamentally shifted the parameters of the debate The statistics provided by Mr. Williamson only show a marginal increase in labour force participation by Canadian women since Law was decided.

[75] The evidence that Mr. Williamson provided that Canada borrowed the age restriction and the sliding scale for survivor’s benefits from Sweden were not mentioned in the Supreme Court of Canada’s decision in Law. However, I do not believe that this evidence raises a new legal issue or fundamentally shifted the parameters of the debate. The Supreme Court of Canada in Law acknowledged that the CPP was “premised upon informed statistical generalizations which may not correspond perfectly with the long-term financial need of all surviving spouses. . .”^{Footnote 40} However, the Supreme Court of Canada still found that the CPP had an egalitarian purpose and concluded that the Minister was entitled to base the CPP upon informed generalizations without breaching subsection 15(1) of the Charter.

[76] The Appellant in the Law case only raised age as an enumerate ground for discrimination under the Charter. The Appellant in this case alleged the CPP created distinctions based on age, disability, and the fact she had no dependent children in her NCQ.^{Footnote 41}  The Supreme Court of Canada in Law directly addressed the enumerated ground of age, and it also considered the fact that Ms. Law was not disabled and had no dependent children when it concluded that paragraph 44(1)(b) and subsection 58(1) of the CPP were not unconstitutional.

[77] The law under subsection 15(1) of the Charter has evolved since the Supreme Court of Canada decided Law in 1999. In 2020, the Supreme Court of Canada decided a case called Fraser v Canada (Attorney General).^{Footnote 42} In Fraser, the Supreme Court of Canada provided a “clear account of how to identify adverse effects discrimination”.^{Footnote 43} The Fraser decision defined adverse impact discrimination as occurring when a seemingly neutral law disproportionately impacts members of a group protected on the basis of an enumerated or analogous ground.

[78] However, the Fraser decision does not help the Appellant. The Supreme Court in Fraser actually positively referred to the Law decision in its reasons as standing for the proposition that the Charter not only protects against direct or intentional discrimination, but it also protects against adverse impact discrimination.^{Footnote 44}

[79] I also have to follow Federal Court of Appeal decisions. The Federal Court of Appeal decided a case called Landau v Canada (Attorney General) after the Supreme Court of Canada released its decision in Fraser.^{Footnote 45} The Appellant in Landau argued that she was entitled to an increased retirement pension under the CPP because of subsection 15(1) of the Charter. She said the CPP discriminated against her and other single persons. The Federal Court of Appeal dismissed her appeal. In doing so, the Federal Court of Appeal said the Fraser decision did not cast any doubt on the correctness of the Law decision.

[80] The Federal Court of Appeal also decided a case called Weatherley v Canada (Attorney General)^{Footnote 46} in 2021, after the Supreme Court of Canada decided Fraser. The appellant in Weatherley alleged that her Charter rights were breached because the CPP limited her to collecting one survivor’s pension. The Federal Court of Appeal did not find a Charter breach and cited the Law decision with approval.

[81] I therefore have to follow the Law decision and dismiss this constitutional appeal because the Appellant did not meet the test set out in Bedford and Carter. The Appellant’s circumstances mirror the facts in Law, where the Supreme Court of Canada rendered a decision that the CPP survivor’s provisions were constitutional. The Appellant’s evidence did not convince me that she raised a new legal issue or that the legal framework has changed since Law was decided.

[82] I also disagree with the Appellant’s argument that the amendments to the CPP was effectively an admission of unconstitutionality on the part of the Minister.

[83] The Tribunal has previously decided that “governments should be given some leeway to create new programs and revise them to make them more effective without the revision necessarily being considered and admission that the original program was either a failure or violated s.15 of the Charter.”^{Footnote 47}

[84] Having determined that I am bound to follow the Law decision, there is no need for me for me to undertake a subsection 15(1) Charter analysis. It is also not necessary for me to decide whether the alleged infringement can be justified as reasonable in a free and democratic society under section 1 of the Charter.

The Appellant is not eligible to receive a survivor’s pension before January 1, 2019

[85] I am dismissing the Appellant’s appeal on her eligibility to receive a survivor’s pension before January 1, 2019.

[86] I disagree with the Appellant’s argument that the Minister should have rounded up her age and awarded her a disability pension. The CPP said that the Appellant was deemed to have reached the age of 35 at the beginning of the month following the month in which she reached 35.^{Footnote 48} The CPP did not contain a provision to round up her age to receive a survivor’s pensions.

[87] The law was clear that survivors who, like the Appellant, were under 35 years old, had no disability, and had no dependant children were not entitled to survivor’s pension at the time of the death of the Appellant’s spouse. The CPP as it is currently written, clearly states that the changes to paragraph 44(1)(d) and paragraph 58(1)(a) came into force in January 2019. The Appellant is not entitled to a survivor’s pension before that date.

[88] I must therefore dismiss this appeal.

Conclusion

[89] I dismiss the Appellant’s constitutional challenge.

[90] I also dismiss the appeal on the Appellant’s eligibility for a survivor’s pension before January 1, 2019.

[91] This means that the Appellant is not eligible for a survivor’s pension before January 1, 2019.