Date: 19980507
Docket: A-697-93
CORAM: STONE, J.A.
LINDEN, J.A.
ROBERTSON, J.A.
BETWEEN:
JOAN MURRAY
Appellant
(Plaintiff)
- and -
HER MAJESTY THE QUEEN as represented by
THE MINISTER OF HEALTH AND WELFARE
Respondent
(Defendant)
HEARD at Toronto, Ontario, Wednesday, May 6, 1998
JUDGMENT rendered at Toronto, Ontario, Thursday, May 7, 1998
REASONS FOR JUDGMENT BY: LINDEN, J.A.
CONCURRED IN BY: STONE, J.A.
ROBERTSON, J.A.
Date: 19980507
Docket: A-697-93
CORAM: STONE, J.A.
LINDEN, J.A.
ROBERTSON, J.A.
BETWEEN:
JOAN MURRAY
Appellant
(Plaintiff)
- and -
HER MAJESTY THE QUEEN as represented by
THE MINISTER OF HEALTH AND WELFARE
Respondent
(Defendant)
REASONS FOR JUDGMENT
LINDEN, J.A.:
[1] The only issue in this case is whether the appellant, a "war bride", is able to rely on section 15 of the Charter in challenging the validity of a section in the Canada Pension Plan, so as to be able to advance her claim for a share of the "unadjusted pensionable earnings" of her deceased husband, from whom she was divorced after 30 years of marriage in 1974. We are not asked to decide whether there was discrimination, nor are we asked to decide whether the 36 month limitation period set out in section 53.2(1) of the Canada Pension Plan bars the claim.
[2] As of January 1, 1978, the Canada Pension Plan was amended to add section 53.2(1) (now section 55(1)):
| 53.2(1) An application in writing to the Minister may be made by or on behalf of either former spouse to a marriage or his estate or such person as may be prescribed by regulation within 36 months of the date of a decree absolute of divorce or of a judgment of nullity of the marriage, granted or rendered on or after January 1, 1978, for a division of the unadjusted pensionable earnings of the former spouses. |
[3] In August 1984, before section 15 of the Charter came into force, the claimant applied for an equal division of her former husband's unadjusted pensionable earnings, which claim was denied on December 10, 1984 on the basis that 36 months had elapsed so that the claim was barred. A further appeal was rejected on August 12, 1985. An appeal to the Review Committee was also dismissed on May 7,1986, following the coming into force of section 15. An application for leave to appeal to the Pension Appeal Board was denied on June 25, 1986.
[4] On January 7, 1991, the claimant filed a Statement of Claim in the Trial Division of this Court seeking a declaration that section 53.2 is unconstitutional as being contrary to section 15 on the basis of age, sex and marital status and that she was entitled to a share of her former spouse's unadjusted pensionable earnings.
[5] On August 17, 1992, Giles, A.S.P. pursuant to rule 474 asked this Court to decide a preliminary question of law as follows:
| Whether the plaintiff's claim necessitates a retrospective application of s.15 of the Charter of Rights and Freedoms and therefore,cannot support a viable cause of action. |
[6] The Trial Judge, in a thoughtful and thorough opinion, decided that any application of the Charter would be retrospective in this case. He relied on the Supreme Court decision in R. v. Gamble, [1988] 2 S.C.R. 595, as well as the decision of this Court in Benner v. Canada (Secretary of State) which was overruled by the Supreme Court of Canada. (See [1997] 1 S.C.R. 358.)
[7] We have been persuaded by the thorough argument of Ms. Roslyn Levine for the Crown that the decision of the Supreme Court of Canada, overruling this Court's decision in Benner, is the primary authority governing this case, and despite some slight variation in the reasoning, requires us to affirm the decision of the Trial Judge.
[8] It is clear that the Charter cannot be applied retrospectively or retroactively. (R. v. Stevens, [1988] 1 S.C.R. 1153, at p. 1157.)
[9] It is also clear, however, that where the discrimination being complained of is based not on a past event, but on a person's ongoing status, the Charter may be engaged. It all depends on whether the claim is characterized as "event-driven rather than status-driven". (See Iacobucci J. in Benner, supra at p. 384). In other words, if the matter being complained of is status-driven, that is, a current claim is denied on the basis of a status acquired because of some past event, like birth, marriage or illness, the Charter may be applied prospectively to it. If the claim is primarily based on a past event, however, the Charter cannot be applied for that would amount to a retrospective application.
[10] In this case, as was decided by the Trial Judge, the section in issue entitled spouses divorced on or after January 1, 1978 to apply within 36 months for a share of pension credits. Parliament did not confer those rights on all divorced persons; it chose to confer those rights only on those who would be divorced in the future. The past injustice to women was recognized and rectified, but only in cases of divorces granted after the law came into effect. The proclamation into force of the amendment was held up for nearly 6 months after the date of its enactment to allow for adjustments in negotiations involving divorce cases that were in progress, recognizing the difficulties that would be caused to those cases if the delay were not allowed. This delay also indicated conclusively that the characterization in this case has to be based on an event - a divorce obtained after January 1, 1978 - not on the ongoing status of a divorced person. It is, therefore, the date of the divorce, not the fact of the divorce, that is most significant here. If it were otherwise, then all the divorce settlements completed prior to 1978 might have to be reopened.
[11] This conclusion, in our view, is consistent with the reasoning of the Supreme Court of Canada in Benner and with that of the Trial Judge. This result seems also to have been implicitly approved by the Supreme Court in its reasons in Benner, where it discussed at p. 386 the Trial Judge's reasons in this case with apparent approval. It certainly voiced no doubt about its accuracy, something it would have done if such doubt had existed.
[12] Therefore, to apply the Charter in this case would be a prohibited retrospective application. The Trial Judge answered the question correctly. The appeal should be dismissed.
"A.M. Linden"
J.A.
I agree
"A.J. Stone, J.A."
I agree:
"J.T. Robertson, J.A."
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-697-93
| STYLE OF CAUSE: JOAN MURRAY |
- and -
| HER MAJESTY THE QUEEN ET AL. |
DATE OF HEARING: MAY 6, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: LINDEN, J.A.
CONCURRED IN BY: STONE, J.A.
ROBERTSON, J.A.
APPEARANCES: Ms. Joan Murray
For the Appellant
Ms. Roslyn Levine, Q.C.
Ms. Cassandra Kirewskie
For the Respondents
SOLICITORS OF RECORD: Ms. Joan Murray
207- 266 Donlands Avenue
Toronto, Ontario
M6P 3R9
For the Appellant
George Thomson
Deputy Attorney General
of Canada
For the Respondents
| FEDERAL COURT OF APPEAL |
| Date: 19980507 |
| Docket: A-697-93 |
| BETWEEN: |
| JOAN MURRAY |
| Appellant |
| -and- |
| HER MAJESTY THE QUEEN ET AL. |
| Respondents |
| REASONS FOR JUDGMENT |