A-393-11
2013 FCA 16
Doug Runchey (Applicant)
v.
Attorney General of Canada (Respondent)
and
Judith Wilson (Respondent/Intervener)
Indexed as: Runchey v. Canada (Attorney General)
Federal Court of Appeal, Dawson, Gauthier and Stratas JJ.A.—Vancouver, June 21, 2012; Ottawa, January 24, 2013.
Pensions — Canada Pension Plan — Division of pension credits — Judicial review of Pension Appeals Board decision dismissing applicant’s appeal from Review Tribunal decision upholding decision by Minister of Human Resources and Skills Development allowing division of pension credits under Canada Pension Plan (Plan) for applicant’s ex-spouse — Central issue herein interaction of division of unadjusted pensionable earnings (DUPE) provisions, child-rearing provisions (CRP) — Minister rejecting applicant’s reconsideration request that DUPE division be reversed —Applicant arguing that DUPE, CRP interaction treating men differently contrary to Canadian Charter of Rights and Freedoms, s. 15(1) — Whether legislation creating distinction, disadvantage — Interaction of CRP, DUPE provisions creating gender-based distinction — Plan, s. 42(1) “family allowance recipient” definition including any contributor that received allowance under Family Allowances Act, including “such other persons as may be prescribed by regulation” — Canada Pension Plan Regulations (Regulations), s. 77(1)(a) stating that spouse or partner only qualifying for CRP when period during which allowance received not already excluded or cannot be excluded or deducted from person’s contributory period under Part II of Plan — “Person” referring to parent receiving allowance under Family Allowances Act — CRP exclusionary, spouse or partner only qualifying when parent who received family allowance not qualifying — S. 77(1)(a) recognizing that eligibility criteria for CRP imperfect — Plan, s. 42(1), Regulations, s. 77(1) thus establishing circumstances when contributor a “family allowance recipient” — Family allowances, Canada Child Tax Benefit not always going to primary caregiver — Both programs presumptively applying to female parent — CRP program therefore favouring women — Male parents facing additional qualification hurdle because of Income Tax Act, s. 122.6(f) presumption — Easier for women to qualify for CCTB, gain access to CRP — However, distinction not discriminatory — Plan not singling out men in invidious way — Detrimental effect consequence of interaction of rules within complicated scheme — Plan not general social welfare scheme available to all in every circumstance — Finding of discrimination, award of relief herein would disrupt nature, structure of Plan — Application dismissed.
Constitutional Law — Charter of Rights — Equality Rights — Pension Appeals Board dismissing appeal from Review Tribunal decision upholding decision by Minister of Human Resources and Skills Development allowing division of pension credits under Canada Pension Plan (Plan) for applicant’s ex-spouse — Applicant arguing that interaction between division of unadjusted pensionable earnings (DUPE), child-rearing provisions (CRP) treating men differently contrary to Charter, s. 15(1) — Whether legislation creating distinction, disadvantage — Interaction of CRP, DUPE provisions creating gender-based distinction — However, distinction not discriminatory under Charter, s. 15(1) — Plan not singling out men in invidious way — Plan not general social welfare scheme available to all in every circumstance — Charter, s. 15 preventing, redressing discrimination, not altering limited-purpose government programs — Demographic characteristics used to advance legitimate government policy — Benefit to women consistent with ameliorative nature of CRP, DUPE programs — To that extent, CRP, DUPE provisions “law, program or activity” within meaning of Charter, s. 15(2).
This was an application for judicial review of a decision by the Pension Appeals Board (Board) dismissing the applicant’s appeal from a decision of the Review Tribunal upholding a decision by the Minister of Human Resources and Skills Development to allow the application of the applicant’s ex-spouse for a division of pension credits under the Canada Pension Plan (Plan).
The central issue in the present application concerned the interaction of the division of unadjusted pensionable earnings (DUPE) provisions of the Plan, whereby certain pension credits may be divided between ex-spouses in certain circumstances, and the child-rearing provisions (CRP) of the Plan, which accommodate parents who leave the workforce or reduce their participation in it for a period of time to raise their children.
The applicant and Ms. Wilson divorced in 1992 and signed a separation agreement under which they divided their Plan credits. The Minister later granted Ms. Wilson’s application under the DUPE provisions for a division of their unadjusted pensionable earnings for the period during which they cohabited during their marriage. The applicant agreed with the cohabitation period but refused to agree to a division for any period of time. The Minister nevertheless decided to grant Ms. Wilson’s DUPE application for the period in question. The Minister rejected the applicant’s reconsideration request that the DUPE division be reversed during the period of potential CRP eligibility, and that both he and Ms. Wilson be allowed CRP eligibility for that period or that Ms. Wilson be disallowed from being able to claim CRP eligibility for that period. The Minister also advised the applicant that the CRP could not be applied in his case because he had not applied for a Plan benefit. The applicant argued, before the Review Tribunal and the Board, that the interaction of the DUPE provisions and the CRP treated men differently from women and in a discriminatory way, contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms (Charter). The Board found that the Review Tribunal correctly declined jurisdiction to deal with the Charter issue because the only ministerial decision under review was the one mandated by the Plan, which the applicant agreed was done correctly, and that even if the operation of the CRP in conjunction with the DUPE provisions could be considered by the Board, they did not discriminate against men under subsection 15(1) of the Charter.
At issue was whether the legislation creates a distinction based on an enumerated or analogous ground, and whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping.
Held, the application should be dismissed.
The interaction of the CRP and the DUPE provisions creates a gender-based distinction. Women have disproportionate access to the CRP and this can affect the credit split under DUPE to the detriment of men in certain circumstances. A distinction occurs because of the fact that, due to statutory presumptions regarding gender roles and childcare, men have greater difficulty than women in accessing the CRP. This initial distinction is carried through in the DUPE provisions, which can have the effect of reducing one spouse’s pension without a corresponding increase to the other’s pension. Because of the distinction inherent in the CRP, men find themselves in this peculiar situation more frequently than women.
Paragraph 48(2)(a) of the Plan specifies that contributors only qualify for the CRP in months that they (i) are a “family allowance recipient” and (ii) have pensionable earnings that are “less than his [or her] average monthly pensionable earnings”. Central to the applicant’s case was the first requirement—when a person is a “family allowance recipient” within the meaning of the CRP. A “family allowance recipient”, as defined in subsection 42(1) of the Plan for the purposes of the CRP, includes any contributor that received an allowance under the various versions of the Family Allowances Act before their child turned seven years of age. The family allowance cannot be a basis for determining CRP eligibility after 1992 following amendments to the most recent version of the Family Allowances Act. Subsection 42(1) solves this problem by including in the definition of “family allowance recipient”, the phrase “such other persons as may be prescribed by regulation”. Subsection 77(1) of the Canada Pension Plan Regulations (Regulations) lies at the heart of the gender distinction. Paragraph 77(1)(a) of the Regulations states that the spouse or common-law partner can only qualify for the CRP when the “period [during which an allowance was received] has not already been or cannot be excluded or deducted from the person’s contributory period under Part II of the Act”. The words “the person” refer to the parent who received an allowance under the Family Allowances Act. The CRP is an exclusion under Part II of the Plan. Therefore, a spouse or partner can only qualify for the CRP when the parent who received the family allowance does not. Paragraph 77(1)(a) adds an important qualification to the definition of “family allowance recipient” and thus eligibility for the CRP. It recognizes that the eligibility criteria for the CRP are imperfect. That is, in some circumstances the person who received a family allowance was not the child’s primary caregiver. In these circumstances, paragraph 77(1)(a) allows the primary caregiver to access the CRP, but only if the other parent does not get access to the CRP. In sum, subsection 42(1) of the Plan and subsection 77(1) of the Regulations establish three circumstances when a contributor is a “family allowance recipient”: the contributor (1) received a family allowance before 1992 under the old Family Allowances Act; or (2) remained at home as the primary caregiver of the child, is the present or former spouse or common-law partner of a person who received a family allowance, and the person who received a family allowance does not qualify or waives his or her right to the CRP; and (3) after 1992, qualified for the Canada Child Tax Benefit (CCTB). Because of the definition of “family allowance recipient”, eligibility for the CRP is generally limited to parents that, before 1992, qualified for a family allowance or, after 1992, the CCTB. While family allowances and the CCTB will generally have gone to the parent with primary caregiving responsibility, this is not always the case. Rather, both programs presumptively apply to the female parent, except when the male parent has sole custody of the child or in other limited circumstances. Therefore, the CRP program favours women as a whole. The Income Tax Act does not preclude male parents from claiming the CCTB. However, because of the presumption in paragraph 122.6(f) of the Income Tax Act, male parents can face an additional administrative burden to qualify when both the parents live with the child. Thus, it is easier for women to qualify for the CCTB as compared to men, and thus gain access to the CRP.
The distinction created by the interaction between the CRP and the DUPE provisions is not discriminatory. The interaction between the CRP and the DUPE provisions creates a detrimental effect on only some men in only certain circumstances. The Plan does not “single out” men in an invidious way. Rather, the detrimental effect on a limited class of men seems to be a consequence of the interaction of complicated rules within a complicated scheme in support of a Plan that is not a general social welfare scheme available to all in every circumstance. A finding of discrimination and the awarding of relief in this case would disrupt the nature and structure of the Plan. Indeed, it would transform it from a limited contributory scheme into a general social welfare scheme designed to achieve perfect equality between men and women in all circumstances. Section 15 of the Charter prevents and redresses discrimination. It is not to alter fundamentally government programs designed for limited purposes. The use of demographic characteristics by Parliament in allocating resources and benefits cannot be seen as telling an affected group that it is somehow less worthy of worth, membership or belonging in Canadian society or placing a label on it to that effect. Demographic characteristics are simply used as a way of advancing legitimate government policy or fashioning eligibility or qualification criteria so that scarce resources can be allocated among competing groups. The fact that the interaction of the CRP and the DUPE provisions can benefit women in certain circumstances cannot be said to be anomalous. It is consistent with the ameliorative nature of the CRP and DUPE programs. To the extent that the DCRP and DUPE provisions are aimed at ameliorating or remedying the condition of women, they may be said to be a “law, program or activity” within the meaning of subsection 15(2) of the Charter. In such a case, they cannot be found to be discriminatory under subsection 15(1) of the Charter.
STATUTES AND REGULATIONS CITED
An Act to amend the Income tax Act, to enact the Children’s Special Allowances Act, to amend certain other Acts in consequence thereof and to repeal the Family Allowances Act, S.C. 1992, c. 48, ss. 12, 31.
Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 42(1) “family allowance recipient”, 46, 48, 49, 52, 53, 55, 55.1, 55.11(a), 55.2(3).
Canada Pension Plan Regulations, C.R.C., c. 385, ss. 53(g), 77(1).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15.
Family Allowances Act, R.S.C. 1970, c. F-1.
Family Allowances Act, R.S.C., 1985, c. F-1, art. 7(1).
Family Allowances Act, 1973, S.C. 1973-74, c. 44, s. 7(1).
Family Allowances Regulations, C.R.C., c. 642, s. 9(1), (1.1) (as enacted by SOR/90-35, s. 4), (1.2) (as enacted idem), (2),(3).
Family Allowances Regulations, SOR/74-30, s. 10.
Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 122.6 (as enacted by S.C. 1992, c. 48, s. 12).
Income Tax Regulations, C.R.C., c. 945, ss. 6301, 6302.
CASES CITED
applied:
Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657.
considered:
S.R. v. The Queen, 2003 TCC 649, [2004] 1 C.T.C. 2386; Canada (Attorney General) v. Vincer, [1988] 1 F.C. 714, (1987), 46 D.L.R. (4th) 165 (C.A.); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, (1989), 56 D.L.R. (4th) 1; R. v. Turpin, [1989] 1 S.C.R. 1296, (1989), 48 C.C.C. (3d) 8; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703.
referred to:
Gitxsan Treaty Society v. Hospital Employees’ Union, [2000] 1 F.C. 135, (1999), 177 D.L.R. (4th) 687 (C.A.); Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, (1999), 170 D.L.R. (4th) 1; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Harris v. Canada (Minister of Human Resources and Skills Development), 2009 FCA 22, [2009] 4 F.C.R. 330; Wajchendler v. The Queen, 2002 CanLII 947, [2003] 3 C.T.C. 2901 (T.C.C.); Canada (Attorney General) v. Sirois (1988), 90 N.R. 39 (F.C.A.); Canada (Attorney General) v. Young (1996), 108 F.T.R. 124 (T.D.); Canada (Attorney General) v. Campbell, 2005 FCA 420, 262 D.L.R. (4th) 193; Cabot v. The Queen, 1998 CanLII 477, [1998] 4 C.T.C. 2893 (T.C.C.); Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950.
AUTHORS CITED
Canada. Parliament. House of Commons. Special Committee on Pension Reform. Report of the Parliamentary Task Force on Pension Reform. Ottawa: Queen’s Printer, 1983.
Canada. Report of the Royal Commission on the Status of Women in Canada, online: <http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/bird1970-eng/bird1970-part1-eng.pdf>.
Regulatory Impact Analysis Statement, SOR/90-35, C. Gaz. 1990.II.202.
appLICATION for judicial review of a decision by the Pension Appeals Board (D.R. v. Canada (Minister of Human Resources and Skills Development), 2011 LNCPEN 77 (QL)) dismissing the applicant’s appeal from a decision of the Review Tribunal upholding a decision by the Minister of Human Resources and Skills Development to allow the application of the applicant’s ex-spouse for a division of pension credits under the Canada Pension Plan. Application dismissed.
APPEARANCES
Doug Runchey on his own behalf.
Nicole Butcher and Carmelle Salomon-Labbé for respondent.
SOLICITORS OF RECORD
Deputy Attorney General of Canada for respondent.
The following are the resons for judgment rendered in English by
Stratas J.A.:
A. Introduction
[1] Mr. Runchey applies for judicial review from the decision dated September 8, 2011 of the Pension Appeals Board: 2011 LNCPEN 77 (QL) (appeal CP27301 [D.R. v. Minister of Human Resources and Skills Development]). The Board dismissed Mr. Runchey’s appeal from the Review Tribunal.
[2] The Review Tribunal upheld a decision by the Minister of Human Resources and Skills Development to allow the application of Mr. Runchey’s ex-spouse for a division of pension credits under the Canada Pension Plan, R.S.C., 1985, c. C-8 (the Plan).
[3] The central issue in Mr. Runchey’s application for judicial review concerns the interaction of two sets of provisions in the Plan:
• The division of unadjusted pensionable earnings provisions of the Plan (the DUPE provisions). Under the DUPE provisions, certain pension credits may be divided between ex-spouses in certain circumstances: section 55.1 of the Plan.
• The child-rearing provisions of the Plan (CRP). Under the CRP, parents who leave the workforce or reduce their participation in it for a period of time to raise their children are accommodated: sections 48 and 49 of the Plan.
The precise nature of these provisions and how they interact will be discussed below.
[4] In his application for judicial review and in the administrative proceedings below, Mr. Runchey maintains that these provisions interact in a manner that treats men differently from women and discriminates against men, contrary to the constitutional guarantee of equality contained in subsection 15(1) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].
[5] For the reasons that follow, I conclude that the provisions do not violate section 15 of the Charter. Accordingly, I would dismiss the application for judicial review with costs.
B. Background
[6] After 19 years of marriage, in April 1992, Mr. Runchey and Ms. Wilson (the named intervener in this Court) divorced. Before they divorced, they signed a separation agreement in which they agreed, among other things, to divide their existing Plan credits.
[7] Many years later, on April 15, 2008, Ms. Wilson applied to the Minister under the DUPE provisions of the Plan for a division of their unadjusted pensionable earnings—sometimes known as a credit split—for the period during which they cohabited during their marriage.
[8] Mr. Runchey was advised of Ms. Wilson’s application and was asked whether he agreed with the cohabitation period. Mr. Runchey agreed with the period but refused to agree to a division for any period of time that would be or had been excluded or dropped out of Ms. Wilson’s contributory period due to the CRP. The period that would be dropped out of Ms. Wilson’s contributory period under the CRP fell within May 1974 to October 1984.
[9] On June 18, 2008, the Minister decided to grant Ms. Wilson’s DUPE application for the period in question. The Minister did not accept Mr. Runchey’s position.
[10] Mr. Runchey asked the Minister to reconsider the decision. He asked that the DUPE division be reversed during the period of potential CRP eligibility (May 1974 to October 1984). He asked that both he and Ms. Wilson be allowed CRP eligibility for that period or that Ms. Wilson be disallowed from being able to claim CRP eligibility for that period.
[11] On December 19, 2008, the Minister rejected Mr. Runchey’s reconsideration request and confirmed the DUPE decision. The Minister also advised Mr. Runchey that the CRP could not be applied in his case because he had not applied for a Plan benefit.
[12] Mr. Runchey appealed to the Review Tribunal the Minister’s denial of his request for a reconsideration of the DUPE decision. Before the Review Tribunal, he argued that the interaction of the DUPE provisions and the CRP treated men differently from women and in a discriminatory way, contrary to subsection 15(1) of the Charter.
[13] On April 22, 2010, the Review Tribunal dismissed Mr. Runchey’s appeal. It held that it did not have jurisdiction to consider the Charter issue raised by Mr. Runchey because only the Minister’s decision concerning Ms. Wilson’s request for credit splitting under the DUPE was before it. It found that the DUPE provision, by itself, did not contravene the Charter.
[14] Mr. Runchey appealed to the Pension Appeals Board. He advanced substantially the same submissions he made before the Review Tribunal.
[15] The Board rejected Mr. Runchey’s submissions on the following bases:
• The Board’s jurisdiction under the Plan is limited to what the Review Tribunal could or could not do. In this case, the Board found that “the Review Tribunal correctly declined jurisdiction to deal with the Charter issue raised by Mr. [Runchey] because the only ministerial decision under review was the one mandated by the [Plan] (a DUPE distribution) which Mr. [Runchey] agrees was done correctly” (at paragraph 34).
• Even if the operation of the CRP in conjunction with the DUPE provisions could be considered by the Board, the Board found they did not discriminate against men under subsection 15(1) of the Charter (at paragraphs 36–48).
[16] As mentioned above, Mr. Runchey now brings an application for judicial review before this Court.
C. Preliminary objection by the Attorney General
[17] In this Court, the Attorney General maintains that the only matter before this Court is the Minister’s decision under the DUPE provisions. There is no decision concerning the CRP before the Court. The Attorney General notes that Mr. Runchey concedes that the credit splitting under the DUPE provisions was performed exactly according to the law as written. Therefore, the Attorney General says that the constitutional issue is not squarely before this Court in this application.
[18] I disagree. Mr. Runchey’s position, expressed in his notice of application, is that the Minister’s application of the DUPE provisions, as written, perpetuates a constitutional infirmity. That infirmity is the discrimination against men, contrary to subsection 15(1) of the Charter, caused by the interaction of the CRP and DUPE provisions. To address this infirmity, in his notice of application he claims, among other things, a declaration that he will have “equal access to the [CRP] as a result of the DUPE action, as does [Ms. Wilson]”.
[19] Mr. Runchey’s notice of application is not drafted with precision. To some extent, the lack of precision of the notice of application is understandable because Mr. Runchey is a self-represented litigant. In this regard, I note that the Attorney General did not seek to clarify Mr. Runchey’s notice of application. From his memorandum and his argument in this Court, it was evident that the Attorney General appreciated exactly what Mr. Runchey was arguing in his application and was not prejudiced in any way.
[20] The effect of Mr. Runchey’s core submission is that by deciding Ms. Wilson’s request for credit splitting under the DUPE provisions as written, those provisions being contrary to subsection 15(1) of the Charter, the Minister made an invalid decision.
[21] Therefore, I find that the constitutional issue raised by Mr. Runchey is squarely before the Court and must be determined.
[22] From this, it follows that the constitutional issue raised by Mr. Runchey was also squarely before the Pension Appeals Board. Although the Board had only Ms. Wilson’s application for credit splitting under the DUPE provisions before it, Mr. Runchey’s constitutional argument, directed to the validity of the DUPE provisions to be applied by the Board, was also before the Board. It follows that the Board’s decision that it did not have jurisdiction to consider Mr. Runchey’s constitutional argument cannot stand. In the end, this does not matter, as the Board went on to consider and dismiss Mr. Runchey’s constitutional argument on its merits.
D. Mr. Runchey’s standing
[23] The Attorney General submitted that Mr. Runchey is not able to advance his constitutional challenge. Ms. Wilson was the only primary caregiver and so there are no circumstances where Mr. Runchey would be eligible for the CRP. Even if Mr. Runchey were able to establish that the interaction of the CRP and DUPE provisions creates a distinction between males and females, he is not personally affected.
[24] I disagree. Among other things, Mr. Runchey seeks a declaration that the interaction of the CRP and DUPE provisions infringes the Charter. The Attorney General requests that if this Court rules that the declaration should be granted, the declaration should be suspended so that Parliament, by legislative amendment, can fix the constitutional defect. That fix might change the basis upon which pension credits are split, affecting Mr. Runchey directly.
[25] Further, Mr. Runchey’s claim, as described above, smacks as a challenge brought not only on the basis of direct standing but also on the basis of public interest standing. Mr. Runchey, as a male, seeks to vindicate the equality rights of males, claiming that the interaction of the DUPE provisions and the CRP causes systemic discrimination contrary to section 15 of the Charter. The Attorney General did not take issue with Mr. Runchey’s standing to advance this claim as a public interest litigant.
[26] In these circumstances, I am prepared to accept that Mr. Runchey has standing as a public interest litigant to advance his constitutional challenge. I prefer to consider his challenge on its merits.
E. The evidentiary record before this Court
[27] In this Court, Mr. Runchey sought to introduce an affidavit in support of his application. The affidavit contains mainly statements of law and calculations of how the CRP and DUPE provisions might apply in certain circumstances.
[28] The Attorney General moves for exclusion of the affidavit. The Attorney General submits that Mr. Runchey’s affidavit is “replete with argument, opinions and conclusions that are entirely speculative and that are outside of his personal knowledge.” In response, Mr. Runchey concedes that some paragraphs in his affidavit should be struck, but insists that other paragraphs setting out factual matters were properly before the Court.
[29] I would grant the Attorney General’s motion. The affidavit is inadmissible in this Court.
[30] The statements of law are inadmissible: the place for those is the memorandum of fact and law.
[31] The calculations are based on factual matters to some extent not in evidence and the calculations, themselves, are factual matters. On judicial review, factual matters are determined by the administrative decision maker, not the reviewing court. That is the place where proof of factual matters should be offered. It is trite that the evidentiary record in this Court normally consists of the evidentiary record before the administrative decision maker being reviewed: Gitxsan Treaty Society v. Hospital Employees’ Union, [2000] 1 F.C. 135 (C.A.), at paragraph 15. There are narrow exceptions to this rule, none of which apply here.
[32] For Mr. Runchey’s benefit, I note that the exclusion of the affidavit did not affect the merits of his application for judicial review. The statements of law in his affidavit were largely explored in the parties’ memoranda of fact and law and, as will be evident in these reasons, this Court was able to identify and assess on the basis of the existing, proper evidentiary record, without assistance from the affidavit, how the CRP and DUPE provisions interact and the effects they cause.
F. The standard of review
[33] The Pension Appeals Board’s decision to dismiss Mr. Runchey’s constitutional argument is subject to correctness review in this Court: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 58.
G. Introduction to the analysis under subsection 15(1) of the Charter
[34] Faced with a claim that legislation infringes the constitutional guarantee of equality in subsection 15(1) of the Charter, the Court must consider the following two questions:
(1) Does the legislation create a distinction based on an enumerated or analogous ground?
(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? In other words, is there discrimination?
See generally Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at paragraph 17; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at paragraph 30.
H. Does the legislation create a distinction based on an enumerated or analogous ground?
(1) Comparator groups
[35] In considering whether legislation creates a distinction, one must first ask, “A distinction between whom?” In the equality rights jurisprudence, this is often described as the issue of “comparator groups.”
[36] The selection of comparator groups can be controversial and in recent jurisprudence the Supreme Court has tried to reduce its importance in the overall analysis: Withler, above. Fortunately, in benefits cases such as this, identifying the distinction and the comparator group is “relatively straightforward” because the ground for denying a benefit to a particular group is relatively clear: Withler, at paragraph 64. That is the case here.
[37] Mr. Runchey says that the interaction of the CRP and the DUPE provisions creates a distinction based on gender—men and women—and gender is an enumerated ground under subsection 15(1) of the Charter. While the Attorney General contests whether there is indeed a distinction, it concedes Mr. Runchey has founded his challenge upon an enumerated ground. In their oral and written arguments, the parties articulated the alleged distinction in terms of gender. For the purposes of this appeal, the comparator group need not be refined further.
(2) Examining the CRP and the DUPE provisions and their interaction with each other to assess whether there is a distinction based on gender
[38] In his submissions, Mr. Runchey tended to characterize the distinction between men and women created by the CRP and the DUPE provisions as being very significant, creating real differences in the size of benefits men could receive.
[39] In my view, there is a distinction, but it is qualitatively less significant than that urged by Mr. Runchey. Briefly, a distinction occurs because of the fact that, due to statutory presumptions regarding gender roles and childcare, men have greater difficulty than women in accessing the CRP. This initial distinction is carried through in the DUPE provisions, which, as we shall see, can have the effect of reducing one spouse’s pension without a corresponding increase to the other’s pension. Because of the distinction inherent in the CRP, men find themselves in this peculiar situation more frequently than women.
(a) General characteristics of the Plan
[40] As a general matter, the calculation of benefits under the Plan is affected by how much and how long people contribute to the Plan. More contributions generally result in greater benefits.
[41] The administrators of the Plan maintain a record of earnings for each person who has contributed to the Plan. For each year of contributions, the record lists the contributor’s unadjusted pensionable earnings (pension credits), as calculated under section 53 of the Plan. Contributors’ pension credits are used to calculate their average pensionable earnings: section 52 of the Plan.
[42] Generally, a contributor’s Plan entitlement is 25 percent of his or her average pensionable earnings, adjusted to take into account the average of the contributor’s final five-year maximum pensionable earnings: section 46 of the Plan.
(b) The DUPE provisions
[43] Under section 55.1 of the Plan, married or common-law couples who subsequently separate can split the pension credits they accumulated during the period they lived together. This action is known as a Division of Unadjusted Pensionable Earnings (DUPE), and is sometimes called “credit splitting.”
[44] This credit splitting is intended to provide the lower income-earning spouse with a measure of protection by potentially increasing his or her access to pension benefits in the event of marital breakdown.
[45] Subsection 55.1(1) of the Plan—what I have called the DUPE provisions—authorizes the Minister to perform a DUPE. It reads:
| When mandatory division to take place |
55.1. (1) Subject to this section and sections 55.2 and 55.3, a division of unadjusted pensionable earnings shall take place in the following circumstances: (a) in the case of spouses, following the issuance of a decree absolute of divorce, a judgment granting a divorce under the Divorce Act or a judgment of nullity of the marriage, on the Minister’s being informed of the decree or judgment, as the case may be, and receiving the prescribed information; (b) in the case of spouses, following the approval by the Minister of an application made by or on behalf of either spouse, by the estate or succession of either spouse or by any person that may be prescribed, if (i) the spouses have been living separate and apart for a period of one year or more, and (ii) in the event of the death of one of the spouses after they have been living separate and apart for a period of one year or more, the application is made within three years after the death; and (c) in the case of common-law partners, following the approval by the Minister of an application made by or on behalf of either former common-law partner, by the estate or succession of one of those former common-law partners or by any person that may be prescribed, if (i) the former common-law partners have been living separate and apart for a period of one year or more, or one of the former common-law partners has died during that period, and (ii) the application is made within four years after the day on which the former common-law partners commenced to live separate and apart or, if both former common-law partners agree in writing, at any time after the end of that four-year period. |
[46] Credit splitting is mandatory and automatic for divorces and annulments occurring on or after January 1987: paragraph 55.11(a) of the Plan (note that section 55 applies to divorces prior to 1987). In some provinces, couples can exclude credit splitting through written agreements: subsection 55.2(3) of the Plan. Credit splitting is also available to married couples who are separated and former common-law partners, but only if they apply for it.
[47] In limited circumstances, the Minister may refuse to make a division, or may cancel a division. To do so, the Minister must be satisfied that: (i) both contributors subject to the division would be entitled to benefits; and (ii) a division would decrease the amount of both contributors’ benefits: subsection 55.1(5) of the Plan.
[48] The DUPE provisions otherwise operate in a straightforward way. They simply add together all pension credits of spouses for each year they cohabited, and then divide the total credits equally between them.
[49] The effect of the DUPE provisions is to transfer pension credits from the high income-earning spouse to the low earning spouse. The pension credits transferred under the DUPE provision are credited to the record of earnings of the low earning spouse. Therefore, the monetary value of the credit split depends on a number of other factors relevant to calculating a contributor’s Plan benefits, such as the contributors’ earning history, age at retirement, and the use of “drop-out provisions.”
(c) The CRP: its general nature
[50] In certain situations, the Plan allows contributors to “drop out” of low earning periods so that reduced earnings are removed from the calculation of benefits. These are governed by “drop-out provisions” in the Plan.
[51] Most contributors are entitled to a “general low-earnings drop out”: subsection 48(4) of the Plan. This provision allows contributors to “drop out” a certain percentage of years when their contributions are low for any reason.
[52] In addition to this general drop out, the Plan also contains drop-out provisions for specific cases.
[53] The CRP, sometimes also described as the child-rearing drop out (CRDO), is one such provision. Under it, parents can remove from their calculation of benefits under the Plan time spent caring for young children. In this way, the CRP ensures that parents who leave or reduce their workforce participation to raise preschool-aged children are not penalized in determining future pension benefits: Harris v. Canada (Minister of Human Resources and Skills Development), 2009 FCA 22, [2009] 4 F.C.R. 330, at paragraphs 89 and 101.
[54] Subsection 48(2) of the Plan is the general provision. It provides as follows:
| 48. … |
|
| Deductions in calculating average monthly pensionable earnings of certain months during child raising years |
(2) In calculating the average monthly pensionable earnings of a contributor in accordance with subsection (1) for the purpose of calculating or recalculating benefits payable for a month commencing on or after January 1, 1978, there may be deducted (a) from the total number of months in a contributor’s contributory period, those months during which he was a family allowance recipient and during which his pensionable earnings were less than his average monthly pensionable earnings calculated without regard to subsections (3) and (4), but no such deduction shall reduce the number of months in his contributory period to less than the basic number of contributory months, except (i) for the purpose of calculating a disability benefit in respect of a contributor who is deemed to have become disabled for the purposes of this Act after December 31, 1997, in which case the words “the basic number of contributory months” shall be read as “48 months”, (i.1) for the purpose of calculating a disability benefit in respect of a contributor who is deemed to have become disabled for the purposes of this Act in 1997, in which case the words “the basic number of contributory months” shall be read as “24 months”, and (ii) for the purpose of calculating a death benefit and a survivor’s pension, in which case the words “the basic number of contributory months” shall be read as “thirty-six months”; and (b) from his total pensionable earnings, the aggregate of his pensionable earnings attributable to the months deducted pursuant to paragraph (a). |
[55] Paragraph (a) excludes months from the contributory period and paragraph (b) excludes earnings from total pensionable earnings. Thus, the combined effect of these paragraphs allows a contributor to “drop out” the child-rearing years from his or her Plan benefit calculations.
[56] The CRP provision does not automatically exclude “child rearing” years from the qualifying parent’s benefit calculations. Periods are only dropped if doing so will result in higher pension benefits: paragraph 48(2)(a) of the Plan.
(d) The CRP: who qualifies?
[57] Paragraph 48(2)(a) of the Plan specifies that contributors only qualify for the CRP in months that they (i) are a “family allowance recipient” and (ii) have pensionable earnings that are “less than his [or her] average monthly pensionable earnings”.
[58] The first requirement, “family allowance recipient”, is defined in the Plan and the Plan Regulations [Canada Pension Plan Regulations], C.R.C., c. 385. As will be seen below, a parent is considered a “family allowance recipient” if he or she received a payment under the old Family Allowances Act [R.S.C. 1970, c. F-1] or qualified for the Canada Child Tax Benefit. The definition also includes the spouse or partner of someone who received a payment under the old Family Allowances Act, but only if the recipient of the family allowance waives his or her entitlement to the CRP.
[59] The second requirement—earnings below average monthly pensionable earnings—ensures that the CRP does not drop out months that would otherwise increase the contributor’s pension benefits.
[60] Central to Mr. Runchey’s case is the first requirement—when a person is a “family allowance recipient” within the meaning of the CRP.
(e) “Family allowance recipient”: subsection 42(1) of the Plan
[61] Subsection 42(1) of the Plan defines “family allowance recipient” for the purposes of the CRP. It reads as follows:
| 42. (1) … |
|
| “family allowance recipient” « bénéficaire d’une allocation familiale » |
“family allowance recipient” means a person who received or is in receipt of an allowance or a family allowance pursuant to the Family Allowances Act, chapter F-1 of the Revised Statutes of Canada, 1970, as it read immediately before being repealed or the Family Allowances Act for that period prior to a child reaching seven years of age, and such other persons as may be prescribed by regulation. |
[62] Under this definition, a “family allowance recipient” includes any contributor that received an allowance under the various versions of the Family Allowances Act before their child turned seven years of age. The most recent version of the Family Allowances Act (R.S.C., 1985, c. F-1) was repealed as of January 1, 1993: S.C. 1992, c. 48, section 31. After this date, parents were not eligible for family allowances. Accordingly, family allowances are not relevant to defining “family allowance recipient” after 1993.
[63] As a result, the family allowance cannot be a basis for determining CRP eligibility after 1992. Subsection 42(1) of the Plan solves this problem by including in the definition of “family allowance recipient”, “such other persons as may be prescribed by regulation”. A regulation has been enacted and lies at the heart of the gender distinction under attack in this case.
(f) Subsection 77(1) of the Plan Regulations
[64] Subsection 77(1) of the Plan Regulations expands the definition of “family allowance recipient”. In so doing, it adds new categories of contributors that are eligible for the CRP. This subsection states:
77. (1) For the purposes of the definition “family allowance recipient” in subsection 42(1) of the Act, family allowance recipient includes
(a) the spouse, former spouse, common-law partner or former common-law partner of a person who is described in that definition as having received or being in receipt of an allowance or a family allowance in respect of a child for any period before the child reached the age of seven, if that spouse, former spouse, common-law partner or former common-law partner remained at home during that period as the child’s primary caregiver and that period has not already been or cannot be excluded or deducted from the person’s contributory period under Part II of the Act;
(b) a member of the Canadian Armed Forces who, before 1973, was posted to serve outside Canada, or the spouse or former spouse of such a member, who, but for the posting, would have received an allowance or family allowance for a child under seven years of age;
(c) the person who, under section 122.62 of the Income Tax Act, is considered to be an eligible individual for the purposes of subdivision a.1 of Division E of Part I of that Act (Child Tax Benefit) in respect of a qualified dependant under seven years of age; and
(d) the person who would have been considered to be an eligible individual for the purposes of subdivision a.1 of Division E of Part I of the Income Tax Act (Child Tax Benefit) had a notice been filed under subsection 122.62(1) of that Act, where no person was considered to be an eligible individual in respect of the same qualified dependant under seven years of age.
[65] Paragraphs (c) and (d) of the provision extend the definition of family allowance recipient to the person eligible for the Canada Child Tax Benefit under Part I, Division E, subdivision a.1 of the Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1.
[66] The Canada Child Tax Benefit was introduced in the 1992 federal budget, and replaced the family allowance in 1993: S.C. 1992, c. 48, section 12; Wajchendler v. The Queen, 2002 CanLII 947, [2003] 3 C.T.C. 2901 (T.C.C.), at paragraph 3. It provides a single non-taxable monthly payment to the custodial parent of a child. This payment is “intended to benefit the child by providing funds to the parent who primarily fulfilled the responsibility for the care and upbringing of the child”: S.R. v. The Queen, 2003 TCC 649, [2004] 1 C.T.C. 2386, at paragraph 12.
[67] Paragraph 77(1)(a) further extends the definition to the spouses and common-law partners of those who received a family allowance under the Family Allowances Act. It does so on two conditions: The spouse or common-law partner must have remained at home as the primary caregiver of a child under the age of seven and the “period has not already been or cannot be excluded or deducted from the [recipient of an allowance]’s contributory period under Part II of the Act”.
[68] Before this Court, the parties contested the meaning of this latter requirement.
[69] Mr. Runchey argued that a spouse or common-law partner can only qualify under this extended definition if the person who received the family allowance waives his or her right to the CRP in favour of the contributor.
[70] The Attorney General disagrees and argues that a waiver is not necessary. According to the Attorney General, the waiver was introduced to enhance administrative efficiency. If a parent cannot obtain a waiver, paragraph 53(g) of the Plan Regulations allows Plan administrators to determine which parent actually acted as the primary caregiver.
[71] The Plan and Plan Regulations favour the applicant’s interpretation. Paragraph 77(1)(a) says that the spouse or common-law partner can only qualify for the CRP when the “period has not already been or cannot be excluded or deducted from the person’s contributory period under Part II of the Act”. The words “the person” refer to the parent who received an allowance under the Family Allowances Act. The CRP is an exclusion under Part II of the Plan. Therefore, a spouse or partner can only qualify for the CRP when the parent who received the family allowance does not.
[72] Thus, paragraph 77(1)(a) adds an important qualification to the definition of “family allowance recipient” and thus eligibility for the CRP. It recognizes that the eligibility criteria for the CRP are imperfect. That is, in some circumstances the person who received a family allowance was not the child’s primary caregiver. In these circumstances, paragraph 77(1)(a) allows the primary caregiver to access the CRP, but only if the other parent does not get access to the CRP. This can occur if the CRP would lower the amount of the parent’s pension, or if the parent waives his or her right to it.
[73] In sum, subsection 42(1) of the Plan and subsection 77(1) of the Plan Regulations establish three circumstances when a contributor is a “family allowance recipient”:
1. before 1992, he or she received a family allowance under the old Family Allowances Act; or
2. he or she remained at home as the primary caregiver of the child, he or she is the present or former spouse or common-law partner of a person who received a family allowance, and the person who received a family allowance does not qualify or waives his or her right to the CRP; and
3. after 1992, he or she did or could qualify for the Canada Child Tax Benefit.
(g) Is there a gender-based distinction?
[74] The foregoing analysis shows that the CRP does not necessarily apply to the parent that had primary caregiving responsibility for the child or children. Because of the definition of “family allowance recipient”, eligibility for the CRP is generally limited to parents that, before 1992, qualified for a family allowance or, after 1992, the Canada Child Tax Benefit.
[75] While family allowances and the Canada Child Tax Benefit will generally have gone to the parent with primary caregiving responsibility, this is not always the case. Rather, as we shall see, both programs presumptively apply to the female parent, except when the male parent has sole custody of the child or in other limited circumstances. Therefore, the CRP program favours women as a whole.
(i) Family Allowances
[76] The Family Allowances Act, R.S.C. 1970, c. F-1, as it read immediately before being repealed, and all subsequent versions of the Family Allowances Act are relevant to determining eligibility for the CRP. This particular case concerns the Family Allowances Act, 1973, S.C. 1973-74, c. 44 and subsequent versions.
[77] The Family Allowances Act and the associated regulations favoured women over men. The allowance was normally paid to the mother, the father being eligible to receive the benefit “only in exceptional and very precise circumstances”: Canada (Attorney General) v. Vincer, [1988] 1 F.C. 714 (C.A.), at page 720. The allowance was not divisible between the parents. As bluntly put by Pratte J.A. in Vincer, above [at page 718]: “Clearly [the Family Allowances Act and Regulations] make a distinction between women and men; clearly they treat women more favourably than men.”
[78] The relevant versions of the Family Allowances Act paid an allowance to the female parent, except as prescribed by regulations. The relevant provision read as follows:
| Recipient of allowance |
7. (1) Where payment of a family allowance is approved, the allowance shall, in such manner and at such times as are prescribed, be paid to the female parent, if any, or to such parent or other person or such agency as is authorized by or pursuant to the regulations to receive it. |
See Family Allowances Act, 1973, S.C. 1973-74, c. 44, subsection 7(1) and the Family Allowances Act, R.S.C., 1985, c. F-1, subsection 7(1).
[79] Despite the presumption in favour of female parents, males could receive an allowance in certain limited circumstances. Section 10 of the Family Allowances Regulations, SOR/74-30 provided as follows:
10. (1) Where payment of a family allowance is approved, the allowance shall be paid to the male parent where
(a) there is no female parent; or
(b) the female parent and male parent are living separate and apart and the male parent has, in fact, custody of the child.
(2) …
(3) Notwithstanding subsections (1) and (2), payment of any allowance under this Act may be made to any parent or other suitable person or agency in any case where the Minister, on the basis of information received by him,
(a) considers it necessary to do so by reason of infirmity, ill health, improvidence or other reasonable cause of disqualification of the person to whom the allowance is otherwise payable; or
(b) considers that other special circumstances or reasonable cause of any kind renders payments to such a person or agency necessary.
[80] Under this provision, males with sole custody of the child received the family allowance. However, male parents could not qualify if the parents had joint custody of the child: Canada (Attorney General) v. Sirois (1988), 90 N.R. 39 (F.C.A.).
[81] Subsequent versions of the Family Allowances Regulations kept this provision, but renumbered it from section 10 to section 9: C.R.C., c. 642 (1978).
[82] On December 21, 1989, further amendments to the Family Allowances Regulations came into effect. These amendments added additional circumstances when male parents could receive the family allowance: SOR/90-35 [section 4]. The new provisions read:
9. …
(1.1) Where payment of family allowance is approved and both the female parent and male parent declare in writing that the male parent is the parent who is primarily responsible for the day-to-day care of the child, the family allowance may be paid to the male parent.
(1.2) Where payment of a family allowance is approved and the female parent and the male parent are living separate and apart and have, in fact, joint custody of the child, the family allowance may, on the written request of both the female parent and the male parent, be paid to the male parent.
[83] While expanding eligibility for males, the amendments were intended to preserve females as the primary recipients of family allowances: Regulatory Impact Analysis Statement, C. Gaz., Part II, Vol. 124, No. 2, page 202. The new provisions allowed male parents with joint custody to access the family allowance, but only with the female parent’s written consent: subsections 9(1.1) and 9(1.2); Canada (Attorney General) v. Young (1996), 108 F.T.R. 124 (T.D.), at paragraph 29.
[84] Thus, males were only eligible for the family allowance in limited situations. Prior to the 1989 amendments, the male had to have sole custody of the child, or there needed to be “special circumstances”. After the amendments, males with joint custody could also receive payments with written consent of both parents. But women remained the primary recipients throughout the life of the family allowance.
(ii) Canada Child Tax Benefit
[85] Like the family allowance, the female parent is automatically eligible for the Canada Child Tax Benefit in most circumstances. However, unlike the family allowance, the male parent is usually eligible if he is the primary caregiver, even if both parents live with the child.
[86] According to the Income Tax Act, the parent that is the “eligible individual” of the “qualified dependent” receives the Canada Child Tax Benefit. Section 122.6 of the Income Tax Act defines “eligible individual” as follows:
| 122.6 … |
|
| “eligible individual” « particulier admissible » |
“eligible individual” in respect of a qualified dependant at any time means a person who at that time (a) resides with the qualified dependant, (b) is a parent of the qualified dependant who (i) is the parent who primarily fulfils the responsibility for the care and upbringing of the qualified dependant and who is not a shared-custody parent in respect of the qualified dependant, or (ii) is a shared-custody parent in respect of the qualified dependant, (c) is resident in Canada or, where the person is the cohabiting spouse or common-law partner of a person who is deemed under subsection 250(1) to be resident in Canada throughout the taxation year that includes that time, was resident in Canada in any preceding taxation year, (d) is not described in paragraph 149(1)(a) or 149(1)(b), and (e) is, or whose cohabiting spouse or common-law partner is, a Canadian citizen or a person who (i) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, (ii) is a temporary resident within the meaning of the Immigration and Refugee Protection Act, who was resident in Canada throughout the 18 month period preceding that time, or (iii) is a protected person within the meaning of the Immigration and Refugee Protection Act, (iv) was determined before that time to be a member of a class defined in the Humanitarian Designated Classes Regulations made under the Immigration Act, and for the purposes of this definition, (f) where the qualified dependant resides with the dependant’s female parent, the parent who primarily fulfils the responsibility for the care and upbringing of the qualified dependant is presumed to be the female parent, (g) the presumption referred to in paragraph 122.6 eligible individual (f) does not apply in prescribed circumstances, and (h) prescribed factors shall be considered in determining what constitutes care and upbringing; |
[87] Under this provision, the “eligible individual” is the parent who “primarily fulfils the responsibility for the care and upbringing of the qualified dependant”: paragraph 122.6(f).
[88] Paragraph 122.6(f) presumes that the female parent is the primary caregiver when she is living with the child. Therefore, when both parents reside with the child, the female parent benefits from a presumption that she is the “eligible individual” and collects the Canada Child Tax Benefit.
[89] However, this presumption is rebuttable: Canada (Attorney General) v. Campbell, 2005 FCA 420, 262 D.L.R. (4th) 193, at paragraph 24; Cabot v. The Queen, 1998 CanLII 477, [1998] 4 C.T.C. 2893 (T.C.C.), at paragraph 24 . Paragraph 122.6(h) of the definition authorizes factors for determining which parent is the primary caregiver. These factors are set out in section 6302 of the Income Tax Regulations, C.R.C., c. 945.
[90] Furthermore, the presumption can be excluded by regulations made under subsection 122.6(g) of the definition. For example, the presumption does not apply when the woman advises the Minister in writing that the man is the primary caregiver, nor, when competing claims are made, there are two female parents or the parents reside in different locations: Income Tax Regulations, at paragraphs 6301(a), (c) and (d). In these circumstances, the male parent may claim the Canada Child Tax Benefit without documentation: Campbell, above, at paragraph 12.
[91] Evidence given by an expert called by the Attorney General confirms that this constitutes another administrative barrier to access to the CRP encountered by male child caregivers, caused by the operation of an administrative policy that works in conjunction with the above-mentioned provisions of the Income Tax Regulations:
Under the Canada Child Tax Benefit (CCTB) Program, only the CCTB eligible individual can benefit from the CRP as specified under subparagraphs 77(1)(c) and (d) of the CPP Regulations. However, in cases where male contributors stayed at home to raise the child(ren) but the female parent received the CCTB, the Canada Revenue Agency (CRA) has agreed to provide a letter confirming the fact that if the male parent had applied for the CCTB according to section 122.6 of the Income Tax Act at the time when he was at home caring for the children, he would have been determined to have been the eligible individual for the dates indicated.
Before CRA issues this letter they must receive a signed declaration from the female parent, who had been identified as the “eligible” recipient of the CCTB, attesting to the fact that the other parent was, in fact, the primary caregiver of the child(ren). The female parent must specify the period of time the other parent was the primary caregiver of the child(ren). All other periods would remain with the parent who had originally been identified as the “eligible” CCTC recipient.
(Exhibit “B” to the affidavit of Natasha Rende, at page 14; respondent’s record, at page 513.) The requirement that the female parent sign a declaration before the male can benefit is an administrative obstacle to the male parent that female parents do not encounter. And it might be quite an onerous obstacle where the marriage has broken down and the parents are not cooperating with each other.
[92] Therefore, the Income Tax Act does not preclude male parents from claiming the Canada Child Tax Benefit. However, because of the presumption in paragraph 122.6(f), male parents can face an additional administrative burden to qualify when both the parents live with the child. Thus, the preceding analysis shows that it is easier for women to qualify for the Canada Child Tax Benefit as compared to men, and thus gain access to the CRP.
(h) The interaction of the CRP and the DUPE provisions
[93] Mr. Runchey focuses upon the interaction of the CRP and the DUPE provisions on credit splits.
[94] As already discussed, the DUPE provisions equalize the couple’s credits for each year of cohabitation. This effectively transfers credits from the spouse with more pension credits in each year to the spouse with fewer credits. The CRP operates differently. Rather than granting additional credits to the “child-rearing” parent, it permits him or her to simply “drop out” the qualifying years from his or her pension calculation.
[95] In some situations, both the DUPE provisions and CRP will apply in the same year. That is, the spouses’ pension credits are equalized for the same year that the “child-rearing” parent subsequently drops out of his or her pension calculation.
[96] When this happens, Mr. Runchey says that the CRP and the DUPE provisions interact in a way that is unfair to the “working parent.” This is because the working parent effectively transfers credits to the child-rearing parent even though the child-rearing parent gets no benefit from these credits (i.e. because the period is “dropped out” of the child-rearing parent’s pension calculation). In his view, it is “unfair and unjust” to reduce the working parent’s pension credits when the other parent does not need them.
[97] Mr. Runchey points out, with justification as the above analysis shows, that men suffer this “unfairness” more often than women. As already discussed, female parents have disproportionate access to the CRP. As a result, when the DUPE and CRP overlap, the male parent is likely to be the one transferring credits that the other parent does not need.
[98] This effect is widely understood. One government document, marked “draft” and dated November 30, 2004, states that in this situation “the potential use of [the transferred] credits is lost to both partners, and the point of the credit split itself is lost”: respondent’s record, Vol. 1, at page 230. See also National Post article dated April 30, 1999, respondent’s record, Vol. 1, at page 241.
[99] In light of the foregoing analysis, I conclude that the interaction of the CRP and the DUPE provisions does create a gender-based distinction, a qualitatively subtle one, but nonetheless a distinction. Women do have disproportionate access to the CRP and this can affect the credit split under DUPE to the detriment of men in certain circumstances.
I. Is there discrimination?
(1) General principles
[100] The second part of the test—whether there is discrimination—is key. It relates directly to the purpose of section 15 of the Charter. Section 15 of the Charter is not about preventing or redressing mere distinctions.
[101] For this reason, not all distinctions created by legislation offend section 15: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 182; Law, above, at paragraph 51; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222, at paragraph 188. Put another way, “Equality is not about sameness and s. 15(1) does not protect a right to identical treatment”: Withler, above, at paragraph 31.
[102] Rather, section 15 is aimed at combating discrimination, which is to be understood as perpetuating disadvantage and stereotyping: Kapp, above, at paragraph 24; Withler, above, at paragraph 37.
[103] A classic statement of discrimination is found in Andrews, above, at pages 174–175:
…discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
[104] Subsequent cases have attempted in various ways to explain that discrimination is more than just treating someone differently. There is a personal “sting” to discrimination. When present, it assaults the dignity of the individual by labelling the individual, for reasons outside of his or her control, as being unworthy of equal respect, equal membership or equal belonging in Canadian society: Law, above, at paragraphs 47–53.
[105] In Withler, above, the Supreme Court described two different types of discrimination. These types, their characteristics, and the types of evidence that are relevant to them, are as follows:
(1) The perpetuation of prejudice or disadvantage to members of a group on the basis of personal characteristics identified in the enumerated and analogous grounds. In Withler, the Supreme Court observed that perpetuation of disadvantage typically occurs when the law treats a historically disadvantaged group in a way that exacerbates the situation of the group: see, for example, the comments of Wilson J. in R. v. Turpin, [1989] 1 S.C.R. 1296, at page 1333 (section 15 as a tool to remedy or prevent “discrimination against groups suffering social, political and legal disadvantage in our society”). The sort of evidence that is relevant to this type of discrimination includes “evidence that goes to establishing a claimant’s historical position of disadvantage or to demonstrating existing prejudice against the claimant group, as well as the nature of the interest that is affected”: Withler, at paragraph 38.
(2) The creation or perpetuation of disadvantage based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group. Here, historic disadvantage is not required. As explained in Withler, “a group that has not historically experienced disadvantage may find itself the subject of conduct that, if permitted to continue, would create a discriminatory impact on members of the group…by stereotyping members of the group” (at paragraph 36). The sort of evidence to be considered here includes “whether there is correspondence with the claimants’ actual characteristics or circumstances,” and “the ameliorative effect of the law on others and the multiplicity of interests [the law] attempts to balance”: Withler, at paragraph 38.
[106] Under either type of discrimination, “the analysis is [to be] contextual, not formalistic,” involving “looking at the circumstances of members of the group and the negative impact of the law on them.” The emphasis is on the “actual situation of the group and the potential of the impugned law to worsen their situation.” See Withler, above, at paragraphs 37‒40.
[107] The Court must “look at the reality of the situation”, avoiding an “overly technical approach” or “a narrow, formalistic analytical approach”: Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at paragraph 25.
[108] The overall objective of the analysis is to protect and promote substantive equality. In Withler, above, the Supreme Court described substantive equality as follows (at paragraph 39):
Both the inquiries into perpetuation of disadvantage and stereotyping are directed to ascertaining whether the law violates the requirement of substantive equality. Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group.
[109] Key in assessing the existence of discrimination is the context. In some contexts, a measure may be discriminatory. In others, not.
[110] An important part of the context, as we shall see, is the nature of the legislation that creates the impugned distinction.
[111] In assessing whether an impugned provision perpetuates disadvantage and stereotype, the Supreme Court has suggested that four contextual factors can be helpful:
(1) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue;
(2) The relationship or correspondence between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others;
(3) The ameliorative effects of the impugned legislation upon a more disadvantaged person or group in society; and
(4) The nature and scope of the interest affected by the impugned legislation.
(See generally Law, above, at paragraphs 62–75; Kapp, above, at paragraph 19.)
[112] The four contextual factors are not to be used as a rigid template in every case. A “rigid template risks consideration of irrelevant matters on the one hand, or overlooking relevant considerations on the other”: Withler, above, at paragraph 66; see also Kapp, above. Rather, the four contextual factors are to be used as a helpful guide in the analysis.
[113] By its nature, benefits legislation, such as the Plan, has ameliorative objectives and attempts to address competing needs of different groups. This context means that distinctions arising under benefits legislation will not lightly be found to be discriminatory. This is seen in a number of Supreme Court pronouncements.
[114] To this effect, in Withler, above, the Supreme Court held that social benefits legislation will be found to be discriminatory in only a narrow range of circumstances (at paragraph 67):
In cases involving a pension benefits program such as this case, the contextual inquiry at the second step of the s. 15(1) analysis will typically focus on the purpose of the provision that is alleged to discriminate, viewed in the broader context of the scheme as a whole. Whom did the legislature intend to benefit and why? In determining whether the distinction perpetuates prejudice or stereotypes a particular group, the court will take into account the fact that such programs are designed to benefit a number of different groups and necessarily draw lines on factors like age. It will ask whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme. Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required. Allocation of resources and particular policy goals that the legislature may be seeking to achieve may also be considered.
[115] The interaction of rules may give rise to distinctions that are not discriminatory, unless there is “singling out” (Auton, above, at paragraph 41):
It is not open to Parliament or a legislature to enact a law whose policy objectives and provisions single out a disadvantaged group for inferior treatment: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. On the other hand, a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect does not offend this principle and does not give rise to s. 15(1) review. This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner….
[116] In Auton, above, the Supreme Court stressed that the purpose of the legislative scheme requires close examination in the discrimination analysis (at paragraph 42):
Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address.
(2) Applying the general principles: is the gender-based distinction created by the interaction between the CRP and the DUPE provisions discriminatory?
[117] I answer this question in the negative. The distinction created by the interaction between the CRP and the DUPE provisions is not discriminatory, based upon the general principles set out above.
[118] There are several reasons for this conclusion. To some extent these reasons overlap, interrelate and build upon each other.
– I –
[119] An important part of the context is the nature of the legislation in this case, the Plan.
[120] The Plan does not implement a social welfare scheme. Rather,
The [Plan] was designed to provide social insurance for Canadians who experience a loss of earnings owing to retirement, disability, or the death of a wage-earning spouse or parent. It is not a social welfare scheme. It is a contributory plan in which Parliament has defined both the benefits and the terms of entitlement, including the level and duration of an applicant’s financial contribution.
(Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, at paragraph 9.)
[121] The Plan is a contributory-based compulsory social insurance plan created by federal statute and administered by the federal government. Benefits are paid from direct contributions of employees, employers, and monies earned from the investment of excess contributory funds. It covers virtually all employed and self-employed persons in Canada.
[122] It is not supposed to meet everyone’s needs, but rather to provide partial earnings replacement in certain circumstances. It is designed to be supplemented by private pension plans, private savings, or both.
[123] The Plan is a limited scheme that provides for six types of benefits, many of which are related to a contributor’s insured earnings: retirement pension, disability pension, death benefit, survivor’s pension, disabled contributor’s child benefit and benefit for the child of a deceased contributor. It may be that for some applicants, a different set of rules or conditions for certain benefits might be preferable but the Plan cannot meet the needs of all contributors in every conceivable circumstance, nor is it designed to do that.
[124] Under the Plan, contributions do not always translate into benefits. Instead, the Plan achieves various objectives, sometimes conflicting or overlapping objectives, in a forest of detailed eligibility and qualification rules. Perhaps, in light of the analysis of the provisions above, jungle, not forest, would be more apt.
[125] Seen in light of its nature, purpose and design, the fact that the Plan treats men differently from women in the interaction of the CRP and the DUPE provisions is best seen as a consequence of an intricate scheme with many eligibility and qualification rules, rather than a singling out of men for different treatment, as was described in Auton, above. For some contributors, a different set of rules or conditions might be preferable but the Plan cannot meet the preferences of every contributor in every conceivable circumstance.
[126] Further, the nature of the distinction between men and women in this case must be considered. The detailed analysis, above, shows that the interaction between the CRP and the DUPE provisions creates a detrimental effect on only some men in only certain circumstances. Not all men are affected. This underscores the finding, above, that the Plan does not “single out” men in an invidious way. Rather, the detrimental effect on a limited class of men seems to be a consequence of the interaction of complicated rules within a complicated scheme in support of a Plan that is not a general social welfare scheme available to all in every circumstance.
– II –
[127] The analysis of the CRP and the DUPE provisions and how they interact shows that a finding of discrimination and the awarding of relief in this case would disrupt the nature and structure of the Plan. Indeed, it would transform it from a limited contributory scheme into a general social welfare scheme designed to achieve perfect equality between men and women in all circumstances. Section 15 [of the Charter] is to prevent and redress discrimination. It is not to alter fundamentally government programs designed for limited purposes, absent the sort of invidious characteristics described in Auton, above.
– III –
[128] An important element of the context to be considered is that in benefits schemes such as the Plan, Parliament is allocating scarce resources among competing groups in pursuit of various legitimate policies. In this regard, the Plan is not unlike the Income Tax Act. In such legislation, Parliament allocates resources and benefits based on many factors, including demographic characteristics, in order to ameliorate adverse conditions or promote certain behaviour.
[129] The use of demographic characteristics in a context such as this cannot be seen as telling an affected group that it is somehow less worthy of worth, membership or belonging in Canadian society or placing a label on it to that effect. Demographic characteristics are simply used as a way of advancing legitimate government policy or fashioning eligibility or qualification criteria so that scarce resources can be allocated among competing groups.
[130] There may be a case where demographic criteria effectively single out a particular group for invidious treatment in a manner that has the sort of sting associated with discrimination, but, as mentioned above, in this case there is no such singling out.
– IV –
[131] An important element in the context relevant to the section 15 analysis is the ameliorative nature of the CRP and the DUPE provisions.
[132] The CRP is aimed at accommodating and assisting those who stay at home because of child-rearing responsibilities. The evidence before us suggests that most who do so are women and they often suffer economically as a result: respondent’s record, Vol. 2, at pages 354–357, 509–510. Mr. Runchey did not contest this either by way of evidence or submissions.
[133] This evidence shows that those who stay at home rearing children usually earn little or no income. Since pension benefits are calculated in part on the basis of a person’s average earnings, the person primarily responsible for child rearing—usually a woman—is at risk of receiving lower pension benefits. Seen against the backdrop of this evidence, the CRP is ameliorative: in certain circumstances it excludes from the calculation of benefits, years of little or no income due to child rearing.
[134] The DUPE provisions are aimed at transferring pension credits from the high income-earning spouse to the low earning spouse upon divorce or separation. In many families, the low earning spouse is a woman: respondent’s record, Vol. 2, at pages 355 and 357. Evidence before us described the disadvantage faced by divorced or separated women:
96. Even if a divorced or separated woman enters paid employment, the pension she earns may be adversely affected by the years she spent in the home as a housewife. Pensions are related to earnings and her earnings prior to, during and after marriage are averaged over the number of years she could have been employed, and this includes the time she remained in the home. While some provision is made for reducing the number of years to be averaged, there will be cases in which a divorced or separated woman will be unable to work a sufficient number of years to make up for a non-earning period as a housewife.
(Report of the Royal Commission on the Status of Women in Canada, Government of Canada, 1970, Chapter 2, at page 38; respondent’s record, at page 510.)
[135] Further evidence comes from a special committee examining pension reform in 1983. The committee supported credit splitting, as was ultimately done in the DUPE provisions. It identified the principles behind credit splitting as follows:
• Those who care for others do work that entitles them to a pension in their own right.
• Those homemakers in greatest need are those with little attachment to the labour force, because they have no opportunity to receive any pension of their own apart from Old Age Security and the Guaranteed Income Supplement.
• Marriage is a partnership of equals. It creates obligations on each spouse to provide for the needs of the other. It also creates claims; each spouse has claims on the resources of the family unit. In particular, marriage creates obligations to provide for both partners during their retirement years.
(Report of the Parliamentary Task Force on Pension Reform, House of Commons, 1983, at page 75; respondent’s record, at page 511.)
[136] Accordingly, the DUPE provisions can be said to be aimed at assisting women who, as a class, suffer economic disadvantage compared to men when they leave the workforce to rear children.
[137] The fact that the interaction of the CRP and the DUPE provisions can benefit women in certain circumstances cannot be said to be anomalous. It is consistent with the ameliorative nature of the CRP and DUPE programs.
[138] In the words of Withler, quoted above, [at paragraph 67], we are to assess “whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme” and we need not insist on “[p]erfect correspondence between a benefit program and the actual needs and circumstances of the claimant group.” In my view, the lines drawn are generally appropriate. And in the words of Auton, quoted above [at paragraph 42], the Plan does not impact men “in a way that undercuts the overall purpose of the program,” nor does it single out men in any invidious way.
– V –
[139] Indeed, the fact that the CRP and the DUPE provisions are ameliorative in nature may have other consequences for the section 15 analysis. To the extent that they are aimed at ameliorating or remedying the condition of women, a subsection 15(1) enumerated group, they may be said to be a “law, program or activity” within the meaning of subsection 15(2). In such a case, they cannot be found to be discriminatory under subsection 15(1): Kapp, above, at paragraph 41; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, at paragraphs 84–87.
– VI –
[140] Repeatedly, the Supreme Court has emphasized in its jurisprudence, some of which is cited above, that there need not be “perfect correspondence” in legislation such as this between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant. A significant deviation from correspondence, however, might attract special scrutiny in the discrimination analysis.
[141] On the record before us, it cannot be said that there is a significant deviation from perfect correspondence. Further, it is discernible only after much analysis of multiple provisions that serve different ameliorative purposes. Finally, there is no evidence in the record before this Court regarding how many men who had primary responsibility for children were denied the family allowance or Canada Child Tax Benefit, and to what extent.
– VII –
[142] As noted above, in Auton, at paragraph 41, the Supreme Court held that “a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect…does not give rise to s. 15(1) review.” Mr. Runchey has not placed any evidence before this Court upon which it can prove a discriminatory purpose, policy or effect in the sense of a desire to treat men as not being of equal worth, membership or belonging in Canadian society.
– VIII –
[143] There is an absence of evidence in the record regarding whether men in this context have suffered any historical disadvantage, prejudice or stereotyping.
[144] This is not a situation where the Court can take judicial notice. Mr. Runchey had to prove that men in this situation are in a state of adversity and that the provisions in issue perpetuate that state. Alternatively, Mr. Runchey had to prove that the provisions in issue here create prejudice or stereotyping. He has done neither.
– IX –
[145] Part of the context to be considered is the nature and scope of the interest affected by the impugned legislation. Here, the men’s interest affected is purely economic—the size of the benefit they receive after a credit split.
[146] This underscores the nature of the distinction here as being a natural consequence of a partial income replacement scheme—an economic supplement—with very detailed and complicated eligibility and qualification rules, rather than some comment on the worth, membership or belonging of men in Canadian society.
[147] In light of the foregoing, I find that there is no discrimination, and, thus, no infringement of subsection 15(1) of the Charter.
J. The remaining issues
[148] The Attorney General submitted that the CRP and the DUPE provisions could be saved under section 1 of the Charter in the event that any infringement of the Charter was shown. The Attorney General also requested that any declaration of rights or declaration of invalidity be suspended for a period of 18 months so that the Government of Canada could take steps to address the matter.
[149] Given that there is no infringement of the Charter, it is not necessary to consider these issues.
K. Disposition
[150] I would dismiss the application for judicial review. At the hearing of this matter, the Attorney General stated that it would not be seeking costs of the application. Therefore, I would award no costs.
Dawson J.A.: I agree.
Gauthier J.A.: I agree.