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Pensions - Canada Pension Plan - Charter. Landau v. Canada (Attorney General)
In Landau v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal characterizes the purpose of the CPP regime:[14] The applicant’s challenge overlooks the nature and role of the Plan. The nature and role of the Plan rebuts allegations that it creates salient distinctions under section 15(1) or that any distinctions are discriminatory under section 15(1) or unjustified under section 1 of the Charter. This scheme was designed to provide partial earnings replacement in certain circumstances and was never meant to be comprehensive or meet the needs of all contributors in every conceivable circumstance: Weatherley v. Canada (Attorney General), 2021 FCA 158 at para. 10. It is much like an insurance scheme full of cross-subsidization where some come out ahead and some do not. This sort of scheme also requires that clear and rigid criteria be drawn and specified for contributions and benefits. As well, as explained in Weatherley, an increase in benefits or reduction of contributions for some often must result in the reduction of benefits or increase in contributions or both for others; and many of these others are needy and vulnerable and also arguably fall under section 15(1) of the Charter. On these points, see also Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703 at para. 9; Weatherley at paras. 8-14; Miceli-Riggins v. Canada (Attorney General), 2013 FCA 158, [2014] F.C.R. 709 at paras. 68-69; Runchey v. Canada (Attorney General), 2013 FCA 16, [2014] 3 F.C.R. 227 at para. 109. On benefits plans similar to the Plan and the difficulty in attacking bona fide distinctions under those plans, see similar comments in various Supreme Court cases such as Law v. Canada, 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1 at para. 105, Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 at para. 55, Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 and Auton (Guardian ad litem of) v. British Columbia (A.G.), 2004 SCC 78, [2004] 3 S.C.R. 657.
[15] Auton, in particular, recognizes the necessity of line-drawing and certainty in benefits schemes such as this so that the schemes can achieve their purposes. It suggests (at para. 42) that section 15(1) claims like this are possible only where the legislative scheme targets groups for illegitimate reasons extraneous to the scheme. This is not the case here.
[16] The recent Supreme Court case of Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, analyzed and discussed in Weatherley, above, does not overrule or cast doubt on any of the above cases.
[17] This application is on all fours with Weatherley, which binds us. We note that the applicant in this case did not take issue, directly or indirectly, with Weatherley, its exposition and analysis of the relevant principles under section 15(1), its treatment of Fraser, or the result it reached.
[18] In Weatherley, this Court held that the denial of a benefit, a second survivor’s pension under the Plan, to a person whose second spouse is deceased did not infringe section 15(1) of the Charter. For many of the same reasons expressed in Weatherley, the denial by the Plan of a survivor’s pension or its financial equivalent to a person who has never had an eligible spouse or cohabitee does not infringe section 15(1) of the Charter.
[19] In oral argument, the applicant attempted to distinguish Weatherley on its factual record and her reliance on direct discrimination in this case. We are not persuaded that the factual record in this case is sufficiently different to distinguish Weatherley. In fact, this case is rather close to Weatherley. Both concern the denial of benefits concerning survivorship to particular groups and both have statistical and background evidence concerning the denial—in a number of respects the same or substantially similar evidence. As for the alleged distinction between direct and indirect discrimination, Fraser (at para. 76) suggests that the relevant analysis under section 15(1), set out in Weatherley and other section 15(1) cases, is the same whether the discrimination is direct or indirect.
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