Withler and Fitzsimonds v. Canada (Attorney General), 2011 SCC 12 – March 2011
The Supreme Court of Canada faced two representative plaintiffs in two class actions claiming age discrimination in two Superannuation benefit plans of the federal government. The actions involved claims totalling about $2.6 billion.
The actions had been dismissed at the BCSC and BCCA levels. The Plaintiffs appealed to the Supreme Court of Canada.
The nature of the claim seems simple on one level. Both superannuation plans paid out death benefits to dependant spouses, but such benefits were reduced by 10% for each year of age of the deceased over a certain age. In one case the reduction was 10% for each year of age over 60, and in the other case, over 65.
The plaintiffs selected comparator groups consisting of spouses of deceases member who were younger. These spouses suffered no reduction in death benefit. Ergo – unfair discrimination based on age and contrary to the Charter protection enshrined in S. 15.
The SCC rejected this view, relying on a “substantive contextual approach”. This required a rejection of the reliance on “mirror comparator groups” for the purposes of determining whether or not there was a cause of action in discrimination. The Court said that such groups would be useful at a later stage of an action, in determining damages, but not at the initial stage.
The SCC made clear that judges must seek out the purpose and substance of the challenged legislation, and reject any quest for “formalistic equality”. The court rejected “a formalistic ‘treats like’ approach”.
This is consistent with the line of SCC cases requiring the analysis of “substance over form”. In this case it was necessary to take the “contextual approach” of examining the comprehensive scheme of benefits available to such claimant – a “suite of benefits”.
It was also of crucial importance to examine whether the unequal treatment alleged had the effect of perpetuating disadvantage or stereotyping against the claimant.
Here the court concluded that the statutory scheme establishing the benefits had legitimate goals which were different in respect of the needs of beneficiaries of different ages. For younger members the plans were a type of insurance against unexpected death of the spouse at a time when pension benefits would be less well established. For older beneficiaries the benefit was intended to assist with the costs associated with the members last illness and death.
The Court in large part adopted and approved the reasoning of the trial judge in the BCSC, Madam Justice Garton, in dismissing the appeals as not having established an infringement of the Charter of Rights and Freedoms.