Withler v Canada (Attorney General): Inequality, Inequity or Iniquity?

Yesterday, the Supreme Court of Canada (“SCC”) heard arguments and reserved judgment in Withler v Canada (Attorney General) (see 2008 BCCA 539), the first case in over two years to challenge legislation solely on the grounds it breaches the equality guarantee of the Charter. The appeal revolves around a claim that the reduced payout from the death benefit fund based upon age discriminates on enumerated grounds. The media appears to be more gripped by the potential monetary ramifications of a successful appeal, an amount the Justice Department has calculated in excess of $2 billion; none the less, it is important to note that a Treasury Board report at the end of 2008 showed a $2.5 billion surplus in the death benefit fund. It will be interesting to see the approach the Court takes in light of recent jurisprudence on this issue.


Ms. Withler and her co-appellant Ms. Fitzsimmonds are the lead plantiffs in two class-action lawsuits. Ms. Withler’s husband worked in the public service for 35 years before retiring. Upon his death 3 years later, Ms. Withler received $38,000 from the death benefit fund. Similarly Ms. Fitzsimmonds received $5,000 when her husband, who had served 30 years in the navy, passed away at the age of 71.

The death benefit fund is a product of two respective acts: s. 47(1) of the Public Service Superannuation Act, RSC 1985, c P-36 [PSSA], and s. 66(1) of the Canadian Forces Superannuation Act, RSC 1985, c C-17 [CFSA]. Those acts provide a supplementary death benefit of twice the salary of the participants upon their death, subject to a reduction for age. In the case of the PSSA, public servants’ benefits are reduced by 10% for each year in excess of 65. Under the CFSA, Canadian Forces members’ benefits are reduced 10% for each year beyond 60.

The appellants claim that those provisions constitute age discrimination under s. 15 of the Charter. Accordingly, they seek a declaration that the provisions are inconsistent with the Charter and of no force and effect, and a judgment for the class in the amount by which benefit payments have been reduced.  The defendants argue that the provisions are merely part of a larger legislative scheme which takes into consideration the changing financial requirements of participants as they age.

S. 15(1) states:

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.

At trial, the judge applied the analysis from Law v Canada, [1999] 1 SCR 497 [Law], and found that the provisions neither stigmatized the surviving spouses nor treated them unfairly,  Accordingly, the trial judge found the admittedly differential treatment was not discriminatory. While the BC Court of Appeal (“BCCA”) upheld the trial decision,  the Honorable Madam Justice Rowles dissented.  She would have that the trial judge was in error in applying the comparator group and in failing to conclude the provisions were discriminatory. The appellants now appeal to the SCC.


An interesting underlying factor is the Federal Court decision in Margolis v The Queen, 2001 FCT 85 [Margolis], which held s. 47 of the PSSA infringed the plaintiff’s rights under s. 15 of the Charter and granted judgment accordingly. This decision served as the basis of a motion brought by the plaintiffs to strike out parts of the statement of defence on the grounds of res judicata or abuse of process. The motion was denied partially because Ms. Fitzsimmonds claim (and that of her class) would not be estopped and partly because of the risk of inconsistent results. Also factoring into the judge’s decision was the public nature of this suit versus the private nature of the Margolis case.

As the Court in Law emphasized, discrimination depends not on whether there is merely differential treatment but on whether plaintiffs are stripped of some human dignity. In that case, though ss. 44(d) and 58 of the Canada Pension Plan, RSC 1985, c C-8, reduced CPP benefits to younger surviving spouses according to an arbitrary formula they were not held to be discriminatory.  In Margolis, the trial judge conversely held that the PSSA scheme was illogical and consequently sent the message to older participants that their financial problems were not as worthy of concern; thus, their dignity was violated and s. 47 of the PSSA was unconstitutionally discriminatory.

In the case at bar, the majority of the BCCA held that the trial judge did not clearly err in finding that s. 47(1) of the PSSA and s. 66(1) of the CFSA provisions did not stigmatize the plaintiffs. They accepted his findings that supplementary benefits were part of a larger comprehensive scheme of insurance and pension designed to look after the changing needs of participants. While the comprehensive scheme was not perfect and would not meet the needs of every individual, it was broadly-based to meet the competing interests of its participants and did not contain the hallmarks of discrimination.

Rowles J.A., on the other hand, pointed out that the impugned provisions do not consider the greater needs of older spouses; indeed, they actually provides less to elderly applicants. While the government is not required to provide a benefit, should it choose to do so that benefit must be provided in a non-discriminatory fashion. According to her dissent, a reasonable person in this situation of the plaintiffs would feel devalued and ignored by these provisions.

Rowles J.A. also criticized the trial judge’s questionable reliance on evidence that no complaints were filed prior to Margolis as proof few such persons felt their dignity was violated. The inference seems to be a logical fallacy if one accepts other potential causes for a dearth of complaints (such as individuals’ desires to avoid conflict or unfamiliarity with the legal system). Finally, even if such a conclusion was warranted, the protections guaranteed by s. 15 of the Charter are for individuals, and accordingly should not be cast aside according to the feelings of a majority of comparable reasonable people.


The judgment of the Court of Appeal raises warning flags for potentially troublesome developments in the area of equality and discrimination. At its most extreme, one can argue that a precedent could be set for future state actors to claim an impugned provision is a small part of a comprehensive scheme that merely results in differential treatment without discrimination.

Regarding the merits of the case, it is telling the provisions directly target the elderly as requiring less support, contrary to sociological data suggesting that often their need is greater. The dissenting arguments of Madame Justice Rowles strike a chord here: the purported legislative objective is clearly undermined by the scheme, and does not obtain its goal in a non-discriminatory manner. While the private sector is obviously concerned about the implications of this case, it is important to remember that the Charter acts as the final defence for the individual, even where utilitarian efficiency would ignore him.  At the very least, if the individual right must ultimately yield, the appropriate mechanism for achieving such a balancing act would be via s. 1.

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