Withler v Canada (Attorney General)  SCC 12 (4 March 2011)
In response to a class action brought on behalf of widows receiving spousal death benefits, the Supreme Court of Canada (SCC) has reviewed Canadian jurisprudence regarding the violation of the right to substantive equality under s 15(1) of the Canadian Charter of Rights and Freedoms and revisited the “comparator test” in the context of a challenge to a legislative employee benefits scheme. The decision could be said to represent the final nail in the coffin of the “mirror comparator” test and confirms that contextual, rather than formalistic, analysis is required when considering questions of substantive inequality.
This case was a class action brought on behalf of widows receiving spousal death benefits under two government programs – one for spouses of government civil servants and the other for spouses of military personnel. These two plans provided a suite of work-related benefits both during employment and after retirement, including a package of survivor benefits provided to the surviving spouse and dependents of a plan member after death. The “supplementary death benefit” provided for a lump sum payment to be made to beneficiaries at the time of death and was reduced by 10% for each year by which the plan member exceeded a certain age.
The plaintiffs claimed that the provisions that reduced this death benefit based upon the age of the deceased were age discriminatory and violated s 15(1) of the Canadian Charter:
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.
The SCC, upholding decisions in the BC Supreme Court and Court of Appeal, dismissed the appeal. In the context of the entire scheme, the distinction based upon age was not discriminatory.
The SCC followed the two-part test for showing discrimination under s 15(1) that was established in R v Kapp, 2008 SCC 41, which in turn restates the test in Law v Canada (Minister of Employment and Immigration),  1 SCR 497:
- Does the law create a distinction based on an enumerated or analogous ground?
- Does the distinction create a disadvantage by perpetuating prejudice and stereotyping?
As has been common practice for many years, the plaintiffs sought to compare their situation with others similarly situated by identifying an appropriate comparator group – younger spouses receiving a death benefit that had not been reduced based on age. The SCC rejected this analysis, finding that the use of comparator groups could hamper a contextual application throughout the two stage process. The SCC noted several shortcomings with the comparator analysis – it may fail to capture substantive inequality; it may become a search for sameness; it may shortcut the second stage of the substantive equality analysis; it may be difficult to apply and it also led to claimants expending significant resources searching for comparator groups.
Instead, the role of comparison in the two staged analysis is a more nuanced and contextual application. For example, comparison is engaged when looking at the concept of distinction in the first limb of the test. However, it is unnecessary to pinpoint a particular group that precisely corresponds to the claimant group except for the characteristics alleged to ground the discrimination. In this particular case, the discrimination was clear on the face of the law and further evidence of the effect of the law on the claimant group was not required.
In regards to the second limb, comparison can bolster the contextual understanding of a claimant’s place within a legislative scheme and society at large, thus helping to determine whether the impugned law perpetuates disadvantage or stereotyping. In this case, the SCC identified the following contextual consideration (at ):
a central consideration is the purpose of the impugned provision in the context of the broader pension scheme. Importantly, it is the nature of a pension benefit scheme that it is designed to benefit a number of groups in different circumstances and with different interests. The question is whether the lines drawn are generally appropriate, having regard to the circumstances of the groups impacted and the objects of the scheme. Perfect correspondence is not required. Allocation of resources and legislative policy goals may be matters to consider.
Ultimately, the SCC agreed with the trial judge’s contextual analysis of the two plans which was based on the relevant circumstances and impact and purpose of the scheme, rather than a formalistic analysis based on a singular comparator group, and approved of the conclusion that the provisions corresponded to the claimant’s needs and circumstances, when they were considered in relation to the entire benefits provided by the statutes. The surviving spouses of deceased younger members would not usually have the protection of a pension. On the death of older members, their spouses receive survivor’s pension benefits and health care benefits under other provisions of the plans. These benefits provide a stream of income to the spouses. The supplementary death benefits have a more limited function of assisting with last illness and death expenses when older members die. The SCC recognised that pension benefits schemes must balance different claimants’ interests, and cannot be perfectly tailored to every individual’s personal circumstances. Thus, the legislative scheme as a whole accounted for each claimant’s need for a continued income stream and life insurance coverage at the time of the spouse’s death.
Relevance to the Victorian Charter
Ultimately this decision may aid in the future interpretation of s 8 of the Charter which similarly provides for equality before the law without discrimination (s 8(3)). Discrimination under the Charter is defined to mean discrimination on the basis of an attribute listed in s 6 of the Equal Opportunity Act 1995 (Vic), and includes age and association with a person by reference to their age.
The use of comparator groups has been criticised by lawyers and academics for many years as an unreasonable and unworkable mechanism for determining whether rights have been infringed. Such criticism led to revised definitions of discrimination contained in the Equal Opportunity Act 2010 (Vic). Given this Act is yet to come into force it remains to be seen how these new definitions will interplay with judicial consideration of s 8 of the Charter and notions of substantive equality.
The decision is at www.canlii.org/en/ca/scc/doc/2011/2011scc12/2011scc12.html.
Anna Brown is Senior Lawyer at the Human Rights Law Centre