View cases - Stewart McKelvey

29[144] In addition to this amendment, s.44(1.1), 72(1) and 72(2) were added to the CPP. Unders.44(1.1), a same-sex survivor would not be eligible for survivor’s pension unless they becamesurvivors after January 1, 1998. Section 72(2) precluded payments to survivors for any monthbefore July 2000 irrespective of when the same-sex partner became eligible.[145] The effect of this provision was to preclude any retroactive survivor benefits to same-sexsurvivors including the opportunity to seek up to 12 months of pension arrears which wasavailable to opposite-sex survivors under s.72(1). Section 72(2) came to an end as of June 2001,because after that date, same-sex and opposite-sex partners were treated the same under s.72(1).2010 CHRT 27 (CanLII)[146] Hyslop was a class action and the position of the class was that same-sex survivors whosecontributing partner died any time after April 17, 1985, should be entitled to retroactive benefitsto the month following the death of their same-sex partner.[147] The Supreme Court found that s.44(1.1) and s.72(2) infringed the Charter and thenconsidered the question of the appropriate remedy. As a starting point, the Court noted that wherethe offending provision is declared unconstitutional, the result under s.52(1) of the Charter, is thenullification of the law from the outset. In such case, the courts generally grant retroactiveremedies.[148] However, where the law changes through judicial intervention, it may be appropriate for acourt to limit the retroactive effect of its judgement, that is, apply the principle of limitedimmunity. Under this principle, “it is a general rule of public law that, absent conduct that isclearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harmsuffered as a result of the mere enactment or application of a law that is subsequently declared tobe unconstitutional.” (Makin and Guimond v. Quebec, [1996] 3 S.C.R. 347, para.78).[149] To justify a prospective remedy only, the Supreme Court required that the thresholdrequirement of a “substantial change in the law” must be satisfied. Once this is met, other factorssuch as reasonable reliance, good faith, fairness to litigants and respecting parliament’s role mustbe considered.