[1] The issue in this appeal is whether the estate of a deceased claimant can continue an outstanding claim under the Canada Pension Plan (the Plan) when the deceased's claim rests on the allegation that a provision of the Plan violates her equality rights under section 15 of the Canadian Charter of Rights and Freedoms (the Charter).

THE FACTS

[2] Ethel Vincent and Reginald Vincent lived in a common-law relationship between August 1974 and January 1986. In July 1996, Ms. Vincent applied for a "Division of Unadjusted Pensionable Earnings" (credit-splitting) under the Plan. At that time, the provisions for credit-splitting under the Plan were applicable to common-law partners who separated in 1987 or later. Ms. Vincent did not meet that requirement, but applied anyway because she was of the view that the cut-off date of January 1, 1987 violated the section 15 guarantee of equality in the Charter.

[3] Ms. Vincent's initial application to the Minister for credit-splitting was dismissed because she and Mr. Vincent ceased living together prior to the statutory cut-off date. Her request for reconsideration was unsuccessful. She then appealed to the Review Tribunal, giving notice of her intention to argue that her section 15 equality rights were violated by the temporal restrictions on her right to apply for credit-splitting. Before the appeal to the Review Tribunal could be heard, Ms. Vincent died. The Minister then brought a motion seeking the dismissal of Ms. Vincent's application on the basis that Ms. Vincent's estate had no standing to bring or maintain a Charter application. The Minister relied upon a number of cases, notably Levesque Estate v. Levesque Estate, [1989] N.B.J. No. 359 (Q.B.) (Levesque Estate), Stinson Estate v. British Columbia (1999), 70 B.C.L.R. (3d) 233 (C.A.), 1999 BCCA 761 (Stinson Estate) and Wilson Estate v. Canada (Attorney General) (1996), 25 B.C.L.R. (3d) 181 (B.C.S.C.) (Wilson Estate) in support of his position that the rights protected by section 15 of the Charter are personal and cannot be asserted by anyone other than the person whose rights have been violated, not even by that person's estate. The Review Tribunal distinguished the authorities cited by the Minister on the basis that they all involved attempts to commence proceedings seeking redress for violations of a person's Charter rights after the death of that person. But in Ms. Vincent's case, the proceedings were commenced during her lifetime, so that the estate was simply continuing an existing proceeding.

[4] The Minister sought judicial review of the Review Tribunal's decision. The matter came before MacKay J. who, in a decision reported at (2004) 257 F.T.R. 107, 2004 FC 1016, dismissed the application for judicial review. MacKay J. had this to say about the authorities relied upon by the Minister:

[19] None of the authorities cited by the Minister stand for the proposition that a Charter claim started and pursued by a claimant terminates upon the death of the claimant, and may not be carried forward by the claimant's estate. In Levesque, supra, where no claim was initiated against an estate during the lifetime of the claimant it could not be initiated by her estate after the claimant's death. In Stinson, supra, the British Columbia Court of Appeal ruled that a Charter claim commenced after the individual's death by the deceased's estate could not continue. In Wilson, supra, the Court dismissed a claim under section 7 brought against the police by the victim's estate for wrongful violation of the deceased's right to life. No claim had been initiated by the deceased in his lifetime.

[5] The Minister appeals to this Court from Mackay J.'s decision.

[6] There is no issue, in the appeal, as to the appellant's right to seek judicial review of an interlocutory decision of a tribunal in these circumstances. Nor is there an issue as to whether the estate of Ms. Vincent, as opposed to her personal representative, is the proper respondent, but only because the Minister takes the position that the result is the same in either case.

[7] The parties have agreed that, should the Charter attack against the legislation be successful, there are pecuniary benefits at stake, namely, an increase in Ms. Vincent's entitlement which in turn would result in an increase in survivor benefits payable to her dependent grandchild.

THE LEGISLATION

[8] The Plan provided as follows at the date of Ms. Vincent's original application for benefits:

1. (2) "spouse", in relation to a contributor, means,

(a) except in or in relation to section 53.2,

...

(ii) a person of the opposite sex who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year, and...

...

53.3 (1) Subject to this section and section 53.4, a division of unadjusted pensionable earnings shall take place in the following circumstances:

...

(c) following the approval by the Minister of an application made by or on behalf of either former spouse (within the meaning of subparagraph (a)(ii) of the definition "spouse" in subsection 2(1)) or his estate, if

(i) the former spouses have been living separate and apart for a period of one year or more, or

(ii) one of the former spouses has died during that period,

and the application is made within four years after the day on which the former spouses commenced to live separate and apart.

...

(6) This section applies

...

(b) in respect of spouses and former spouses who commence to live separate and apart after the coming into force of this section.

Statutes of Canada 1986, c. 38, s. 1, 23.

1. (2) « conjoint » à l'égard d'un cotisant, s'entend

(a) sauf à l'article 53.2, de même qu'en ce qui s'y rattache,

...

(ii) d'une personne du sexe opposé qui, à l'époque pertinente, cohabite avec le cotisant dans le cadre d'une relation matrimoniale et a cohabité avec celui-ci pendant une période continue d'au moins un an, et...

...

53.3 (1) Sous réserve du présent article et de l'article 53.4, il doit y avoir partage des gains non ajustés ouvrant droit à pension dans les circonstances suivantes :

...

(c) à la suite de l'approbation par le ministre d'une demande de l'un ou l'autre des anciens conjoints, ou de leur part, (au sens du sous-alinéa a)(ii) de la définition de « conjoint » au paragraphe 2(1)), ou encore d'une demande des ayants droit de l'un ou l'autre des anciens conjoints ou leur part, dans les cas où

(i) les anciens conjoints ont vécu séparément pendant une période d'au moins un an, ou

(ii) l'un des anciens conjoints est décédé pendant cette période,

et si la demande est faite dans les quatre ans suivant le jour lors duquel les anciens conjoints ont commencé à vivre séparément.

...

(6) Le présent article s'applique à l'égard

...

(b) des conjoints ou des anciens conjoints qui commencent à vivre séparément après l'entrée en vigueur de présent article.

Statuts du Canada 1986, ch. 38, a. 1, 23.

[9] Section 53.3 came into force on January 1, 1987. It has since been repealed but its substance was carried forward into subsection 55.1(1)(c) and section 55.11 of the Plan.

[10] The relevant provisions of the Charter are the following:

15. (1) 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.

...

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

...

52. (1) 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, of no force or effect.

15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.

...

24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s'adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.

...

52. (1) La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit.

ANALYSIS

[11] The Minister framed his motion for dismissal as a matter of standing because the authorities on which he relies frame the question in those terms. Unfortunately, this perspective has served the Minister poorly for it focuses attention on issues of status and procedure rather than on the nature of the rights which Ms. Vincent's estate seeks to enforce. When one reviews the Minister's authorities from the perspective of substantive rights rather than from the point of view of standing, one sees that they do not support the conclusion which the Minister urges upon us.

[12] In his book, Locus Standi: A Commentary on the law of Standing in Canada (Carswell, Toronto, 1986), T.A. Cromwell (now a judge of the Nova Scotia Court of Appeal) identifies a number of different uses of the term "standing". In some cases, the term is used to refer to the plaintiff's entitlement on the merits. In others, "standing" is a reference to the person's legal capacity to sue. More commonly, the question of standing calls for an inquiry into "the required nature and extent of the plaintiff's 'interest' in the question submitted for adjudication." (Cromwell, at p. 4). Another use of the expression "standing" is found in cases such as Thorson v. A. G. Canada (1974), 43 D.L.R. (3d) 1 (S.C.C.) where it is used to refer to the "suitability for judicial determination of the question posed by the plaintiff." (Cromwell, at p. 6). For the purposes of his analysis, Cromwell defines standing as the "entitlement to seek judicial relief apart from questions of the substantive merits and the legal capacity of the plaintiff." (Cromwell, at p. 7).

[13] To the extent that the argument below turned on the estate's right to make the Charter argument which Ms. Vincent intended to make for herself, the question of standing appears to be a question of legal capacity. But the Plan clearly contemplates that the estate of a deceased claimant may apply for credit-splitting. See subsection 53.3(1) of the Plan. Consequently, the estate has the capacity to bring (and, by extension, to continue) an application for credit-splitting so that it clearly has standing in the sense of capacity. It also has a sufficient interest in that, given Ms. Vincent's death, it is the only entity capable of pursuing her claim for credit-splitting. Furthermore, no question of justiciability can arise, given the statutory basis for credit-splitting. As a result, the only issue of "standing" about which there can be any question is the Estate's entitlement on the merits. In fact, this is nicely illustrated by the fact that one of the cases relied upon in support of the Minister's position on standing, Wilson Estate, was argued on the basis that the estate's claim disclosed no reasonable cause of action. The use of the concept of standing in this context has a basis in the jurisprudence, but it seems to me that an examination of the rights in issue produces a clearer understanding of the problem raised by this appeal.

[14] I agree with counsel for the Minister that the authorities upon which she relies establish the proposition that a person's estate cannot invoke rights under section 15 of the Charter which the person herself did not invoke in her lifetime. This is so for two reasons. The estate itself is not a person and thus does not have a claim to constitutional guarantees of equality in its own right. The other reason, as we shall see, is that rights arising under the constitution are personal and, in the jurisprudence relied upon by the Minister, die with the person whose rights they are. The question raised by this appeal is whether constitutional rights can be crystallized during a person's lifetime so that they can be pursued after that person's death.

[15] The first proposition upon which the Minister relies is that an estate is not a person and therefore cannot claim the benefit of section 15, whose opening words are "Every individual...". Levesque Estate v. Levesque Estate (1989), 96 N.B.R. (2d) 348 (Levesque Estate) illustrates that proposition. Mr. and Mrs. Levesque lived apart for 13 years, following a marriage of some 39 years. Mrs. Levesque never applied for a division of matrimonial property during her lifetime with the result that when the couple died with weeks of each other, most of the matrimonial property was in Mr. Levesque's name. In his will, Mr. Levesque left most of his estate to two of the couple's twelve children. The children who did not benefit from their father's will caused their mother's estate to launch an application for division of matrimonial property. This was met with the argument that while the New Brunswick Marital Property Act allowed an estate to pursue an action for division commenced during a spouse's lifetime, it did not permit an estate to commence an action for division in its own right.

[16] The estate argued that the dispositions of the Marital Property Act amounted to a violation of its right to equality under section 15 of the Charter. The Court had little difficulty concluding that "an estate, whatever it is, is not a physical person and is therefore not an 'individual' under subsection 15(1) of the Charter." The conclusion that only an individual can claim the benefit of section 15 is amply supported by the jurisprudence. Levesque Estate decided that, in the constitutional context, an estate is not an individual.

[17] The other cases relied upon by the Minister, notably Stinson Estate v. British Columbia (1999), 70 B.C.L.R. (3d) 233 (C.A.), 1999 BCCA 761 (Stinson Estate) and Wilson Estate v. Canada (Attorney General) (1996), 25 B.C.L.R. (3d) 181 (B.C.S.C.) (Wilson Estate) are authority for the proposition that an estate cannot claim the benefit of constitutional rights which the deceased did not assert in his or her lifetime. The issue is whether this is a matter of standing or of substantive rights.

[18] A careful reading of these cases shows that, while they use the language of standing to dismiss the plaintiff's claim, their underlying rationale is that the remedy which the estate seeks to invoke can only be invoked by the person whose rights have been infringed. For example, in Wilson Estate, the British Columbia Supreme Court said:

[24] I am of the view that an application for a s. 24 remedy cannot be made by the administrator of the estate of a deceased who applies for a remedy in respect of the alleged infringement or denial of the rights or freedoms of the deceased. The status of third parties is considered in R. v. Paolitto (1994), 91 C.C.C. (3d) 75 and Borowski v. Atty Gen of Canada (1989), 57 D.L.R. (4th) 231.

[19] The trial judge then went on to hold that section 24 of the Charter "...confines the granting of a remedy to one for the benefit of the applicant whose rights or freedoms were infringed or denied." (para. 25). The Court concluded:

26. Adeline Wilson is deceased. There is no s. 24 remedy which could be of benefit to her. It was her personal rights and freedoms which were allegedly violated. There is no legal basis for the administrator of her estate to seek a remedy for the benefit of her estate.

[20] In Levesque Estate, the estate claimed section 15 equality rights on its own behalf. In Wilson Estate, it sought to claim them on behalf of the deceased person whose rights were allegedly infringed. There is jurisprudence, other than in the equality rights context, that only the person whose rights have been violated can claim the benefit of the remedies provided in the Charter. For example, in R. v. Paolitto (1994), 91 C.C.C. (3d) 75, cited in Wilson Estate, the Ontario Court of Appeal held that an accused could not rely upon the fact that evidence had been obtained in violation of another person's rights to have that evidence excluded from their trial. Wilson Estate purported to apply this principle to an estate seeking to assert the constitutional rights of the deceased.

[21] The next step in the reasoning in the line of jurisprudence relied upon by the Minister is that Charter rights, being personal to the individual, do not survive the death of the person whose rights were violated. Stinson Estate, a decision of the British Columbia Court of Appeal, concerned another cut-off date which was alleged to violate the equality provisions of the Charter. Once again, the Court used the language of standing to justify its conclusion. However, a fair reading of the Court's reasons suggests that the nature of the rights in question was determinative of the outcome:

[11] In my respectful view, this appeal should succeed on the third ground, namely that the deceased's estate has no standing to pursue on behalf of the deceased a claim for breach of her s. 15 Charter rights. Section 15 protects the equality rights of "every individual". The rights guaranteed are personal, and the power to enforce the guarantee resides in the person whose rights have been infringed. Here it is the estate of the deceased which seeks a remedy for the alleged breach of Mrs. Stinson's right. Such a claim is not open to the estate, as a third party, under the language of the Charter.

[22] This reasoning is simply confirmation by the British Columbia Court of Appeal of the principle invoked by the trial court in Wilson Estate. The court justified its comment about the estate as a third party by citing the language of the Estate Administration Act to show that it did not vest constitutional rights in the person's estate:

[12] The estate's lack of standing cannot be overcome by reliance on the Estate Administration Act, R.S.B.C. 1996, c. 122. Section 59(2) of that Act authorizes an executor or an administrator of a deceased person's estate "to continue or bring and maintain an action for all loss or damage to the person or property of the deceased...". This is not a claim for loss or damage. It is a claim for declaratory relief under s. 52 of the Charter. The Estate Administration Act therefore has no application.

[23] This raises the question as to whether an estate's right to initiate proceedings in respect of constitutional rights is a matter of the survival of actions legislation in a province. In other words, would the court have come to a different conclusion if the language of the Estate Administration Act had been broad enough to include constitutional rights? Perhaps not, given the Court's conclusion about the extinction of those rights upon death:

[13] The personal nature of the s. 15 equality rights, and their termination upon death of the affected individual was effectively recognized by the learned chambers judge in Grigg, when he held that his order would apply only to those who were alive on 16 March, 1995. The personal nature of Charter rights was also recognized, in somewhat different circumstances, by Mr. Justice Shabbits in Wilson Estate v. Canada (1996), 25 B.C.L.R. (3d) 181 at 186-187, with which I respectfully agree. The remedy sought in Wilson invoked the provisions of s. 24 of the Charter. That is not so in this case where the plaintiff relied only on s. 52, and seeks only declaratory relief. Nevertheless, the result is in my view the same.

[Emphasis added.]

[24] Is the Court saying that equality rights die with the person because, in British Columbia, the Estate Administration Act, does not apply to the remedies created by sections 24 and 52 of the Charter? Or, is it indicating that constitutional rights are so inherently personal that they exist outside the framework of survival of actions legislation? In the first case, whether constitutional rights survive the death of an individual will vary according to the survival of actions legislation in the province. In the second case, constitutional rights are extinguished upon death and cannot come within the scope of provincial legislation dealing with survival of actions.

[25] The Court of Appeal for Ontario appears to have concluded that the issue is not one of survival of actions when it applied the Stinson Estate case in Hislop v. Canada (Attorney General), [2004] O.J. 4815, a case dealing with a cut-off date for benefits for same sex couples:

[103] The section allows the estate of a surviving partner who dies without collecting the survivor's pension, to apply for a survivor's benefit within twelve months of the death of the surviving partner. Section 15(1) of the Charter applies only to individuals. In Stinson Estate v. British Columbia (1999), 70 B.C.L.R. (3d) 233 (C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 169, the British Columbia Court of Appeal held that as s. 15(1) rights are personal, these rights die with the person and cannot be enforced by a person's estate, a separate and artificial entity. We agree. As a result, the survivors' estates enjoy no s. 15(1) rights and there is no basis to assess whether such rights are breached by s. 60(2).

[Emphasis added.]

[26] In accepting that Stinson Estate was authority for the proposition that section 15 rights die with the person, without reference to the Ontario survival of actions legislation, the Court of Appeal for Ontario was effectively adopting the theory that the extinction of section 15 rights upon death is a function of the nature of the rights and not a matter of the scope of the survival of actions legislation in a jurisdiction. While it may well be right in coming to that conclusion, it is not one which is self-evident in light of the British Columbia Court of Appeal's own reasoning.

[27] In none of these cases had the person whose rights were violated taken steps to vindicate those rights in their lifetime. Where a person seeks to assert their equality rights during their lifetime, are those rights crystallized so as to continue to be enforceable even after the person's death? Does the nature of the remedy sought affect the result so that, for example a claim for damages under section 24 might be treated differently that an action for a declaration of invalidity under section 52?

[28] It is clear from the authorities cited to us that in cases where no action is taken by the person during their lifetime, the right to a remedy for a violation of constitutionally protected rights dies with the person. That jurisprudence does not preclude the possibility that constitutional rights could be crystallized by appropriate action during their lifetime by the person whose rights were infringed. If one concludes that such a possibility exists, the question of whether the required type of action was present in this case would have to be examined.

[29] None of these questions were argued before us. I am not prepared to undertake the task of unravelling these questions without the benefit of argument from counsel. Rather than requesting supplementary submissions, which would further delay the ultimate resolution of this dispute, I believe that the better course is to send the matter forward for a full hearing before the Review Tribunal where these issues as well as the substantive issues can be addressed. If an appeal is taken at the conclusion of that process, then this Court will have the benefit of a full record as well as the Tribunal's analysis of the issues.

CONCLUSION

[30] In the result, I would dismiss the appeal with costs.

"J.D. Denis Pelletier"

J.A.

"I agree

Robert Décary j.a."

"I agree

M. Nadon j.a."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-403-04

(APPEAL FROM AN ORDER OF THE COURT DATED JULY 20, 2004, FILE NO. T-652-03)

STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA and ESTATE OF ETHEL VINCENT

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: June 16, 2005

REASONS FOR JUDGMENT BY: PELLETIER J.A.

CONCURRED IN BY: DÉCARY J.A.

NADON J.A.

DATED: AUGUST 15, 2005

APPEARANCES:

Florence Clancy FOR THE APPELLANT

Vincent Calderhead FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario FOR THE APPELLANT

Nova Scotia Legal Aid

Halifax, Nova Scotia FOR THE RESPONDENT

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