Gay partners seek retroactive benefits
$400 million at stake in class-action lawsuit
COLIN PERKEL, from the Toronto Star on the Web, June 10, 2004
Toronto -- It would be a mistake to apply current views on the rights of gay and lesbian couples to the situation that existed in 1985, when the Charter of Rights and Freedoms came into being, a federal government lawyer argued today.
That's because the legal, political and social consensus that gay couples needed the same constitutional protection as opposite-sex couples only began to emerge in the mid- and late 1990s, Paul Vickery told Ontario's highest court.
"There are very strong policy reasons why the courts should not attempt to view events of the past through modern-day eyes," said Vickery.
"It would involve a distortion of the historical record."
The submissions before the Ontario Court of Appeal came as the federal government and gays squared off over millions of dollars in back payments of pension benefits to survivors of same-sex unions.
When Ottawa changed the Canada Pension Plan in July 2000 to bring it into line with constitutional decisions by the courts, it limited retroactivity to Jan. 1, 1998.
That was a reasonable policy decision that balanced the new rights given gay couples against new obligations the changes also imposed, Vickery argued.
In the ruling now under appeal, Ontario's Superior Court in December ordered the payments be retroactive to April 1985.
That's the date the Charter of Rights was enacted.
"From that day forward, all Canadians are equal," said George Hislop, 77, lead plaintiff in the class-action suit on the benefits.
"My companion (of 30 years) died 18 years ago and I'm still waiting for a settlement."
While the plaintiffs initially estimated as much as $400 million was at stake for as many as 10,000 people, federal actuarial data now suggest the amount would be less than $80 million for about 1,500 people.
Hislop estimated he would get as much as $150,000 if the appeal failed, but like the federal government, he insisted money was not the issue.
"It's the principle of the thing," Hislop said.
During the hearing, the three justices pressed Vickery on why the federal government opted for partial retroactivity to the beginning of 1998.
"There's no magic in there?" asked Justice Kathryn Feldman.
"It's policy," Vickery replied.
The adoption of the charter in 1985 was never intended as an "arbitrary signpost," he said.
Gail Flintoft, chairwoman of the Canadian AIDS Society, said outside court that Ottawa's position makes no sense.
"Gays and lesbians have paid into the Canada Pension Plan for as long as anyone else," Flintoft said.
"We don't understand why the federal government is choosing to spend a lot of money fighting against the rights of Canadians to be treated equally."
As he stood outside in the chill, Brian Fox-Male, 82, whose partner of 27 years died in 1996, said it's a simple matter of justice that he be paid fully.
"It is rather unfair that I should be deprived of the money," said Fox-Male said.
"I'm glad to see there's a lot of us fighting it and we're going to go ahead and fight it to the last rounds."
The Ontario government has intervened in the case to argue against further retroactivity, said lawyer Dan Guttman.
The hearing was to continue Friday, with lawyer Doug Elliott arguing on behalf of the gay and lesbian survivors that the lower court's decision should stand.
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