Charter of Rights and Freedoms – Equality Rights
– Age Discrimination – Use of Comparator
The appellants, who were representative plaintiffs in a class
action against the Crown, were widows whose federal supplementary
death benefits were reduced because of their husbands' ages.
The appellants submitted that the age-based benefit reduction,
which was part of a statutory death benefit scheme for certain
federal government employees, violated section 15 of the
While the Supreme Court of Canada ultimately dismissed the
widows' appeal, it rejected the Crown's argument that
because their husbands were the actual subjects of the alleged
discrimination, the widows lacked standing. The court granted the
widows standing on the basis that as surviving spouses they
suffered the alleged discriminatory effect. Furthermore, federal
employees were unlikely to challenge the scheme of their own
With respect to the widows' substantive claim, the court
emphasized that section 15 only prohibits substantive
discrimination on the grounds set out therein, or on an analogous
ground. Substantive discrimination can be made out by showing that
the impugned law, in purpose or effect, perpetuates prejudice and
disadvantage to members of a group on the basis of personal
characteristics caught by section 15(1), or by showing that the
disadvantage perpetuated by the law is based on a stereotype that
does not correspond to the actual circumstances and characteristics
of the claimant or claimant group. The court emphasized that the
focus of a section 15 analysis is the actual impact of the
differential treatment, and therefore the analysis requires a
contextual consideration of the impact of the legislation or state
After canvassing recent jurisprudence, the court cautioned
against the formalistic use of comparator groups as part of this
contextual assessment. The court noted that the probative value of
a comparative analysis varies depending on the nature of the claim
and, as a result, such an analysis is not always required in
considering whether substantive discrimination is made out.
In the claim at issue, the court concluded that the focus must
be on the nature of the benefit. A contextual assessment revealed
that the age-based benefit reduction did not breach section 15. The
scheme was designed to benefit a number of different groups, and
the benefit reductions reflected the reality that different groups
of survivors have different needs. In support of its conclusion,
the court noted that the impugned benefit was not meant to provide
a long-term income scheme for older surviving spouses, as such a
scheme is provided by a distinct pension benefit. The court
explicitly rejected the dissenting opinion of Rowles J.A. of the
British Columbia Court of Appeal, whose narrower comparative
analysis failed to consider the impugned benefit reductions within
the context of the entire package of available benefits.
Having found that section 15(1) was not breached by the benefit
scheme, the court did not perform a section 1 analysis.
This decision is part of a trend, reflected in earlier decisions
such as Kapp, toward a more contextual analysis of the
existence of substantive discrimination in assessing whether a
legislative scheme is discriminatory.
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guide to the subject matter. Specialist advice should be sought
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