Date: 19990909
Docket: A-616-98
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
BETWEEN:
HARBANS SINGH PAWAR, FOR HIMSELF AND
AS A REPRESENTATIVE OF ALL THOSE
ALSO IMPROPERLY DENIED BENEFITS
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia,
on Thursday, September 9, 1999)
MARCEAU J.A.
[1] The great significance of the case now before the Court cannot be more obvious. Not only does it directly involve a large number of people, it puts into question the constitutional validity of a basic feature of a central Canadian statute. An action, to which was given the status of a class action, was commenced in the Trial Division seeking a declaration that section 3 of the Old Age Security Act, R.S.C. 1985, c. O-8, was void, null and of no force and effect in that the residency requirement it imposes as one of the conditions of eligibility for the benefits provided by the Act constitutes a violation of the equality rights embodied in section 15 of the Canadian Charter of Rights and Freedoms. The learned trial judge, on an application by the defendant for summary judgment pursuant to Rules 213 to 219 of the Federal Court Rules, 1998, dismissed the action. This is an appeal from that judgment.
[2] After having long considered and studied the written representations of counsel and listened carefully to their oral arguments, we have all come to the view that this appeal cannot succeed. We agree substantially with the approach adopted by the trial judge and adopt her analysis of the issues involved and her reasoning in dealing with them. So we see no advantage in delaying further the disposition of this appeal. Very briefly put:
| " to the allegation that the residency requirement imposed by section 3 of the Act constitutes in and by itself direct discrimination because it denies benefits to some senior residents, we agree with the trial judge that the ground of distinction, the basis for the unequal treatment " that is, the length and the timing of the residence in Canada " is not a prohibited ground, being neither an enumerated ones, nor an analogous one (see Peterson v. Canada , 124 D.L.R. (42) 96 (F.C.A.)); |
| " to the allegation that there is indirect discrimination because the requirement, although on its face neutral as being applicable to all, in fact prejudices senior Canadian residents born abroad leaving unaffected senior Canadian residents born in Canada, we likewise reply that the ground of distinction " being born abroad " is not an enumerated ground in section 15, not being embraced, as we see it, in the concept "national and ethnic origin", and is not an analogous one either; |
| " and finally, to the allegation that the 1977 amendments, adopted in response to the development of international social security agreements, introduced direct discrimination between senior permanent residents born abroad in countries with and without reciprocal agreements with Canada, since those coming from countries with which Canada has negotiated reciprocal agreements may become entitled sooner than the others, then again, in our view, the ground of distinction " the acquisition of credits under plans that exist in the countries where they have resided before coming to Canada " is not an enumerated ground, having nothing directly to do with "national or ethnic origin", and cannot be considered analogous thereto. |
[3] As we see it, the residence requirement in the Act cannot be seen as violating the human dignity and freedom of any resident of Canada. It is even difficult to imagine its complete absence. The group that is denied benefits " people born abroad or the former residents of countries without reciprocal agreements with Canada " do not form a discrete and insular group who have suffered historical disadvantage because of immutable personal characteristics or vulnerability to political and social prejudice.
[4] We therefore reject the contention that section 3 of the Act and the residency requirement it imposes would be counter to the right of equality for all protected by section 15 of the Canadian Charter. The learned trial judge had all the elements that she needed to dispose of the issues and she was therefore right in rendering the summary judgment that she did.
[5] The appeal will be dismissed with costs.
"Louis Marceau"
J.A.
Date: 19990909
Docket: A-616-98
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
BETWEEN:
HARBANS SINGH PAWAR, FOR HIMSELF AND
AS A REPRESENTATIVE OF ALL THOSE
ALSO IMPROPERLY DENIED BENEFITS
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Vancouver, British Columbia, on Thursday, September 9, 1999.
Judgment rendered from the Bench on Thursday, September 9, 1999.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
IN THE FEDERAL COURT OF APPEAL
Date: 19990909
Docket: A-616-98
BETWEEN:
HARBANS SINGH PAWAR,
FOR HIMSELF AND AS A REPRESENTATIVE OF ALL THOSE ALSO IMPROPERLY DENIED BENEFITS
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
OF THE COURT