Judgments

[1994] 1 F.C. 603

T-34-91

Joan Murray (Plaintiff)

v.

Her Majesty the Queen as represented by the Minister of Health and Welfare (Defendant)

Indexed as: Murray v. Canada (Minister of Health and Welfare) (T.D.)

Trial Division, Rothstein J.—Toronto, September 3 and November 10, 1993.

Construction of statutes — Retrospective application of statutes — Action for declaration Canada Pension Plan, s. 53.2(1) contrary to Charter, s. 15 — S. 53.2 permitting application for division of pension credits within thirty-six months of obtaining decree absolute of divorce rendered on or after January 1, 1978 — Plaintiff divorced in 1974 — In 1984 applying under s. 53.2 — Whether “event-related” (Charter violation related to discrete event occurring prior to coming into force of Charter) or “status-related” case (ongoing state of affairs) — Requiring consideration of (i) Charter provision relied upon, (ii) challenged statutory provision (iii) relevant event or ongoing condition — (i) Charter, s. 15 broad enough to apply to discrimination of ongoing nature — (ii) Date in statutory provision suggesting event contemplated by provision should be given significant regard — (iii) Alleged discrimination created by s. 53.2(1) between persons divorced before and after specified date event related — If Charter relief available would eliminate distinction based on when decree absolute granted — No cause of action as would require retrospective application of Charter.

Pensions — Plaintiff seeking declaration Canada Pension Plan, s. 53.2(1) unconstitutional as contrary to Charter, s. 15 — S. 53.2 permitting application for division of pension credits within thirty-six months of obtaining decree absolute of divorce rendered on or after January 1, 1978 — Plaintiff divorced in 1974 — In 1984 applying under s. 53.2 — Claim involving retrospective application of Charter — No viable cause of action.

Constitutional law — Charter of Rights — Equality rights — Statement of claim seeking declaration Canada Pension Plan, s. 53.2(1) unconstitutional as contrary to Charter, s. 15 — S. 53.2 permitting application for division of pension credits within thirty-six months of obtaining decree absolute of divorce rendered on or after January 1, 1978 — Plaintiff divorced in 1974 — In 1984 applying under s. 53.2 — Whether “event related” case where no Charter remedy or “status related” case where remedy if ongoing Charter violation — Claim involving retrospective application of Charter — Rule against retrospective application of statutes applies to Charter.

This was an application for a preliminary determination of a question of law. The plaintiff was divorced on February 13, 1974. At that time the Canada Pension Plan (CPP) did not provide for the division between divorced spouses of the “unadjusted pensionable earnings” which would entitle the non-wage-earning spouse to a portion of a wage-earning spouse’s retirement pension. On January 1, 1978 section 53.2 was added to the CPP. It permitted an application to the Minister of Health and Welfare for a division of pension credits within thirty-six months of the date of a decree absolute of divorce granted on or after January 1, 1978. In 1984 the plaintiff applied for the equal division of her husband’s unadjusted pensionable earnings. The application was denied on the grounds that the plaintiff was divorced before January 1, 1978 and that the application was not made within thirty-six months of the decree absolute of divorce as required by subsection 53.2(1). In 1991 the plaintiff filed a statement of claim in the Federal Court seeking a declaration that section 53.2 of the CPP was unconstitutional as contrary to Charter, section 15. Section 15, which guarantees equal benefit of the law without discrimination on the basis of inter alia, marital status, age and sex, came into force on April 17, 1985. The question was whether the plaintiff’s claim necessitated a retrospective application of the Charter. Although the plaintiff’s attack on the CPP was said not to be limited to subsection 53.2(1), the merits of the claim other than with respect to subsection 53.2(1) were not argued. Accordingly the determination as to the retrospective application of the Charter was restricted to subsection 53.2(1). The issues were whether the plaintiff was seeking Charter relief that related to a discrete event that predated the Charter, i.e. her decree absolute of divorce, or whether the plaintiff was seeking Charter relief based on her current status as a divorced individual and ongoing discrimination under the CPP against certain divorced persons.

Held, the plaintiff’s claim, based on alleged discrimination created by subsection 53.2(1) of the CPP, necessitated a retrospective application of the Charter.

A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. The general rule is that statutes are not to be construed as having retrospective operation unless such a construction is expressly, or by necessary implication, required by the language of the Act. That rule applies to the Charter, but the relevant facts and law must be carefully considered to determine whether a retrospective application of the Charter is involved.

There are two types of cases that touch on the issue of the retrospective application of the Charter. The first is the “event related” case wherein the alleged contravention of the Charter is related to a discrete event which occurred before the Charter came into force, in which case an applicant will not have a Charter remedy. The second is the “status related” case, in which regard is to be had to an ongoing state of affairs. In such a case, a Charter remedy may be available if it can be demonstrated that there is an ongoing violation of the Charter, even though there may have to be some cognizance of pre-Charter events. It is not always possible to make sharp distinctions between event related and status related cases. A person’s status or ongoing condition may arise by virtue of a discrete event i.e. the status or ongoing condition of being divorced arises because of the court issuing a decree or order of divorce. If there is an ongoing violation of the Charter, Charter relief is not precluded simply because the ongoing violation arose from a discrete event that predated the Charter. One must consider the facts and applicable law in determining whether the focus is on a discrete event or an ongoing condition. Whether in any given case the focus is on the discrete event or on the ongoing condition will require consideration of (i) the Charter provisions upon which reliance is placed, (ii) where applicable, the statutory provision being challenged and (iii) the relevant event or ongoing condition.

(i) While Charter, subsection 15(1) may apply to a discrete event of discrimination, it is broad enough to apply to discrimination of an ongoing nature as well. (ii) Whether the statutory provision alleged to violate the Charter should be viewed as event related or ongoing condition related requires close inspection of the words of the provision itself. A date in a statutory provision suggests that significant regard must be had to the event contemplated by the provision. (iii) Where the facts indicate that both an event and an ongoing condition are present, it is necessary to return to the statutory provision being impugned to see if its primary focus is on the ongoing condition or on the event giving rise to the ongoing condition. As Charter, subsection 15(1) may be used to protect against ongoing discrimination, and divorce, while it may be viewed as an event, is also a status or ongoing condition, the first and third requirements for the prospective application of the Charter were met. The difficult question was whether the impugned statutory provision was event related or ongoing condition related. The alleged discrimination arose out of the distinction made under subsection 53.2(1) between persons divorced before and after a specified date. If Charter relief was available, it would eliminate the distinction based on when persons were granted decrees absolute or orders of divorce. The alleged discrimination created by the provision was thus event related. The plaintiff’s claim, based on subsection 53.2(1) of the CPP, required adoption of the discrete event approach. To relieve against the alleged discrimination created by subsection 53.2(1) of the CPP required a retrospective application of the Charter.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Pension Plan, R.S.C. 1970, c. C-5 (formerly S.C. 1964-65, c. 51), ss. 46, 53.2 (as enacted by S.C. 1976-77, c. 36, s. 7).

Canada Pension Plan, R.S.C., 1985, c. C-8, s. 55(1) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 22; S.C. 1991, c. 44, s. 6).

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. 15(1), 24(1), 32(2).

CASES JUDICIALLY CONSIDERED

APPLIED:

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; (1975), 66 D.L.R. (3d) 449; [1976] CTC 1; 75 DTC 5451; 7 N.R. 401; R. v. Stevens, [1988] 1 S.C.R. 1153; (1988), 41 C.C.C. (3d) 193; 64 C.R. (3d) 297; 86 N.R. 85; 28 O.A.C. 243; R. v. Gamble, [1988] 2 S.C.R. 595; (1988), 31 O.A.C. 81; 45 C.C.C. (3d) 204; 66 C.R. (3d) 193; 89 N.R. 161; Benner v. Canada (Secretary of State), [1994] 1 F.C. 250; (1993) 155 N.R. 321 (C.A.); R. v. Konechny (1983), 6 D.L.R. (4th) 350; [1984] 2 W.W.R. 481; 10 C.C.C. (3d) 233; 38 C.R. (3d) 69; 25 M.V.R. 132 (B.C.C.A.) (leave to appeal to S.C.C. refused 8/5/84, [1984] 1 S.C.R. ix; (1984), 39 C.R. (3d) xxvii; 25 M.V.R. 132; 55 N.R. 156; Re McDonald and The Queen (1985), 51 O.R. (2d) 745; 21 C.C.C. (3d) 330 (C.A.).

DISTINGUISHED:

Regina v. St. Mary, Whitechapel (Inhabitants) (1848), 12 Q.B. 120; 116 E.R. 811; Re Sanderson and Russell (1979), 24 O.R. (2d) 429; 99 D.L.R. (3d) 713; 9 R.F.L. (2d) 81 (C.A.).

AUTHORS CITED

Driedger, Elmer A. “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264.

APPLICATION for a preliminary determination of a question of law. Plaintiff’s claim, based on alleged discrimination created by subsection 53.2(1) of the Canada Pension Plan, necessitates a retrospective application of the Charter and cannot support a cause of action.

COUNSEL:

Stephen J. Goldman for plaintiff.

Roselyn J. Levine for defendant.

SOLICITORS:

Stephen J. Goldman, Toronto, for plaintiff.

Deputy Attorney General of Canada for defendant.

The following are the reasons for order rendered in English by

Rothstein J.: This is a decision on a preliminary question of law that comes before me by order of Giles A.S.P., dated August 17, 1992:

Whether the plaintiff’s claim necessitates a retrospective application of s. 15 of the Charter of Rights and Freedoms and therefore, cannot support a viable cause of action.

FACTS

The facts giving rise to this question can be briefly stated. The plaintiff divorced her husband on February 13, 1974. At that time, there was no provision in the Canada Pension Plan, R.S.C. 1970, c. C-5, as amended, (CPP), for the division between divorced spouses of the “unadjusted pensionable earnings”[1] of a wage earning spouse.[2] On January 1, 1978, the Canada Pension Plan was amended by S.C. 1976-77, c. 36, s. 7, to add section 53.2 to the CPP to provide for the division of unadjusted pensionable earnings between spouses that divorced on or after January 1, 1978. On August 28, 1984, the plaintiff applied to the Minister of Health and Welfare for the equal division of her husband’s unadjusted pensionable earnings.[3] The application was denied on the grounds that the plaintiff was divorced before January 1, 1978 and that the application was not made within thirty-six months of the decree absolute of divorce as required by the 1978 amendment. The plaintiff pursued a series of appeals which were unsuccessful. Eventually, on January 7, 1991, she filed a statement of claim in the Federal Court seeking a declaration that section 53.2 of the CPP is unconstitutional as being contrary to section 15 of the 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]] as it constitutes discrimination on the basis of marital status, age and sex.

THE CHARTER CLAIM

I have not been asked to adjudicate on the merits of the plaintiff’s claim. The preliminary question that I am asked to determine in this case is only whether the plaintiff’s claim necessitates the retrospective application of the Charter. While the parties are in agreement as to the relevant facts, which is a normal condition precedent for the determination of a preliminary question of law, they are not in agreement as to the basis upon which the plaintiff’s Charter claim arises.

Because the merits of the plaintiff’s claim were not before me for determination, counsel for the parties, in their arguments, concentrated on the question of retrospectivity of the Charter and referred only minimally to the merits of the claim. Upon considering their respective arguments, it became apparent to me that the question of the retrospective application of the Charter could not be properly determined unless the basis of the plaintiff’s Charter claim was clearly defined. A conference call was convened and I posed the question as to the basis of the plaintiff’s Charter claim directly to both counsel.

Counsel for the defendant referred me to paragraph 17(a) of the plaintiff’s statement of claim which reads:

17.

…

THE PLAINTIFF THEREFORE CLAIMS AS FOLLOWS:

(a)  A Declaration, pursuant to Section 24 of the Canadian Charter of Rights and Freedoms, and Section 17 and 18 of the Federal Court Act, that Section 53.2 of the Canada Pension Plan, R.S. c. C-5, is unconstitutional as contrary to Section 15 of the Canadian Charter of Rights and Freedoms as constituting discrimination on the basis of marital status, age and sex.

She states that her understanding of the plaintiff’s claim is that subsection 53.2(1) of the CPP, which does not provide for the splitting of pension credits between spouses divorced prior to January 1, 1978, while providing for such splitting between spouses divorced on or after that date, violates subsection 15(1) of the Canadian Charter of Rights and Freedoms as it discriminates on the basis of marital status, age and sex.

Counsel for the plaintiff says that while discrimination created by subsection 53.2(1) constitutes one basis of the plaintiff’s claim, the claim is not limited to subsection 53.2(1). He refers to paragraph 11 of the agreed statement of facts between the parties dated August 28, 1992 which states:

11. The plaintiff filed a Statement of Claim, claiming, inter alia, that the credit splitting provisions of the Canada Pension Plan Act [sic] are in violation of s. 15 of the Charter of Rights and Freedoms on the basis of marital status, age and sex, and seeks relief for such violations under s. 24 of the Charter.

Counsel for the plaintiff says that paragraph 11 contemplates something broader than just an attack on subsection 53.2(1) and that the defendant is bound by the agreed statement of facts. In his written submission dated October 28, 1993, the plaintiff says at page 3:

What we can see from a close analysis of the Statement of Claim is a very detailed and wide ranging attack on the credit splitting rules of entitlement and eligibility in regard to a wide range of individuals in various subcategories, as being discriminatory on [the] basis of marital status, and also on [the] basis of age and sex and alleged in further paragraphs of the Statement of Claim. This is quite consistent with the broad statement contained in Paragraph 11 of the Agreed Statement of Fact, which was of course agreed to by both parties as being the basis for this Motion.

As I have said, counsel for the parties did not dwell on the merits of the plaintiff’s claim in their arguments before me. To the extent that they did address the merits it was with respect to subsection 53.2(1) of the CPP. If I accept the defendant’s position, the plaintiff’s claim is quite specific, based on discrimination created by subsection 53.2(1) of the CPP. If I accept the plaintiff’s position, the plaintiff’s claim is a broad, wide-ranging attack on the CPP, including, but not limited to an attack on subsection 53.2(1).

I would observe that the difficulty that has arisen in this case as to the definition of the plaintiff’s claim suggests that the posing of a preliminary question of law for determination in Charter cases must be carefully considered because of the unique feature of a Charter challenge. In non-Charter cases, an agreement as to relevant facts is usually sufficient. When there can be agreement as to facts, the determination of a question of law on a preliminary basis may be an expeditious way of obviating the need for a trial, or at least reducing the issues for consideration at the trial. However, in a Charter challenge, an agreement as to facts between the parties may be insufficient because the challenge, as in this case, may be as to the validity, applicability or operability of a law. Unless the law being challenged is clearly defined, preliminary questions relating to that law cannot be properly answered.

While I cannot say that the plaintiff may not have a valid Charter claim somewhere within her wide-ranging attack, on a basis other than subsection 53.2(1), the merits of the attack other than in respect of subsection 53.2(1) have not been argued. I myself am not able, on the material before me, to define, in specific terms, what or how other provisions of the CPP may offend the Charter for the purposes of this case. Without precluding the plaintiff from pursuing her claim as she sees fit, I must restrict my determination as to the retrospective application of the Charter to the only claim which has been defined and made understandable to me. This is the claim related to subsection 53.2(1).

THE ISSUE

Is the plaintiff asking the Court to grant Charter relief that relates to a discrete event that predated the Charter, namely her decree absolute of divorce which was granted on February 13, 1974? This would involve the retrospective application of the Charter.

Or is the plaintiff asking that she be afforded Charter relief having regard to her current status as a divorced individual and to ongoing discrimination under the CPP against certain divorced persons? This would involve the prospective application of the Charter to her current condition. The focus of the analysis in this case will be on these questions.

RELEVANT LAW

The relevant provisions of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B of the Canada Act 1982, 1982, c. 11, (U.K.) [R.S.C., 1985, Appendix II, No. 44] are subsections 15(1) and 24(1):

15. (1) 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.

…

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

By virtue of subsection 32(2) of the Charter, section 15 came into force on April 17, 1985.

The relevant provision of the Canada Pension Plan, R.S.C. 1970, c. C-5, as amended, is subsection 53.2(1), enacted by S.C. 1976-77, c. 36, s. 7:

53.2 (1) An application in writing to the Minister may be made by or on behalf of either former spouse to a marriage or his estate or such person as may be prescribed by regulation within 36 months of the date of a decree absolute of divorce or of a judgment of nullity of the marriage, granted or rendered on or after January 1, 1978, for a division of the unadjusted pensionable earnings of the former spouses.[4]

Should I find that the plaintiff’s claim necessitates a retrospective application of subsection 15(1) of the Charter, the question as to whether the Charter may be applied retrospectively must be determined. If it cannot be applied retrospectively, the plaintiff will be left without a Charter remedy. If, however, I find that the plaintiff’s claim does not necessitate a retrospective application of the Charter, then this Court will consider her claim to Charter relief on its merits.

THE LEGISLATIVE HISTORY

The CPP came into force on May 5, 1965 [S.C. 1964-65, c. 51]. The pension-splitting provision, subsection 53.2(1), came into force on January 1, 1978. The subsection required an application to the Minister of Health and Welfare for a division of pension credits within thirty-six months of the date of a decree absolute of divorce rendered on or after January 1, 1978.

Counsel for the defendant explained that it was at this time, in the mid-to-later 1970s, that the courts and legislatures of this country were recognizing that spouses, usually wives, many of whom did not themselves engage in wage-earning employment, but rather, worked in the household, should be recognized as contributing to the opportunity of the wage earner to accumulate assets. As the courts were developing and refining the concepts of unjust enrichment and constructive trust in the family law context, legislatures were adapting their statutes to recognize the previously ignored contribution of spouses in the home to the accumulation of family assets. Prior to 1978, pension credits earned under the CPP belonged solely to the spouse who made the CPP contributions from his or her earnings. The amendments enacted by Parliament for effect on January 1, 1978, entitled spouses divorced on or after that date, upon application made within thirty-six months of the decree absolute of divorce, to a split of pension credits under the CPP. These amendments, as far as they went, were consistent with court decisions and the actions of other legislatures in the family law context at the time.

However, Parliament did not grant the right to all divorced spouses. Subsection 53.2(1) was expressly made prospective. Although the legislation was passed by Parliament on July 14, 1977, it was not proclaimed in force until January 1, 1978. Subsection 53.2(1) expressly limited pension credit splitting to spouses divorced on or after January 1, 1978. Counsel for the defendant explained that the thinking behind the amendment at the time may have been that divorced parties may have had rights that had become vested based upon their understanding of the law at the time of their divorce. Agreements or court orders between spouses prior to 1978 may have been presumed to have taken into account that pension credits under the CPP were not subject to being split. It was suggested that there was a deliberate lag between the date Parliament passed the credit splitting amendment, July 14, 1977, and its proclamation date, January 1, 1978, to enable spouses going through divorces at that very time, to arrange their affairs having regard to the proposed change.

As earlier outlined, there were amendments in 1987 and 1991, neither of which affected the plaintiff’s claim in this case. Under R.S.C., 1985, c. C-8 the provision is now referred to as subsection 55(1).

ANALYSIS

An explanation of a retrospective statute is given by E. A. Driedger, in “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at pages 268-269:

A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted.

The general rule against the retrospective application of statutes was expressed by Dickson J., as he then was, in Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at page 279:

The general rule is that statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act.

The rule against retrospective application of statutes is applicable to the Charter of Rights and Freedoms. In R. v. Stevens, [1988] 1 S.C.R. 1153, Le Dain J., at page 1157 stated:

… the Charter cannot be given retrospective application.

This is clear and unmistakable language. If the plaintiff’s claim in this case involves the retrospective application of the Charter, she cannot be afforded Charter relief.

However, recognition of the clear rule against the retrospective application of the Charter does not end the analysis. The relevant facts and law must be carefully considered to determine whether, in a given case, a retrospective or prospective application of the Charter is involved. In some circumstances, it will be necessary for a court to consider pre-Charter history, but this will not always be considered a retrospective application of the Charter when an alleged current Charter violation is being considered. Wilson J., in R. v. Gamble, [1988] 2 S.C.R 595, stated, at pages 625-626:

Frequently an alleged current violation [of the Charter] will have to be placed in the context of its pre-Charter history in order to be fully appreciated.

…

Charter standards cannot be applied to events occurring before its proclamation but it would be folly, in my view, to exclude from the Court’s consideration crucial pre-Charter history.

The analysis of Wilson J. in Gamble suggests that there are two types of cases that touch on the issue of the retrospective application of the Charter. The first is what may be termed the “event related” case. This would be a case in which the alleged contravention of the Charter is related to a discrete event which occurred before the Charter came into force. The jurisprudence indicates that in a pre-Charter event related case, an applicant will not have a Charter remedy. Criminal cases often fall into this category, with the time an offence is committed, a conviction entered or sentence imposed being the critical elements. When an offence has been committed, conviction entered or sentence imposed before the coming into force of the Charter, Charter relief will not normally be available to an accused. See for example, R. v. Stevens, supra.

The second type of case that touches on the issue of the retrospective application of the Charter is what may be termed the “status related” case. This is a case in which regard is to be had to an ongoing state of affairs. In such a case, a Charter remedy may be available if it can be demonstrated that there is an ongoing violation of the Charter, even though, for this to be found, there may have to be some cognizance of pre-Charter events. Thus, in R. v. Konechny (1983), 6 D.L.R. (4th) 350 (B.C.C.A.) (leave to appeal to S.C.C. refused, [1984] 1 S.C.R. ix), the British Columbia Court of Appeal ruled that the application of sections 9 and 12 of the Charter to the execution of a sentence constituted a prospective application of the Charter even though the criminal act, conviction and sentence all took place prior to the Charter coming into force. Macfarlane J.A. stated, at page 368:

Sections 9 and 12 do not focus on the date of the order imposing imprisonment or punishment, but on the imprisonment or punishment itself, which in this case is yet to occur. I conclude, therefore, that ss. 9 and 12 of the Charter could apply in this case.

In Gamble, supra, Wilson J. distinguished between crystallization or event related cases on the one hand, and ongoing condition or status related cases on the other, and the Charter implications to each. At page 627, she describes the crystallization or event related cases in the following manner:

Different rights and freedoms, depending on their purpose and the interests they are meant to protect, will crystallize and protect the individual at different times. Our previous decisions on the retrospective application of the Charter are consistent with an approach which pays attention to differences in the purposes of the relevant rights and freedoms. For example, procedural rights will crystallize at the time of the process: Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181. Rights against unreasonable searches and seizures will crystallize at the time of the search and seizure: R. v. James, [1988] 1 S.C.R. 669. Substantive guarantees that the accused receive the benefit of his or her subjective mistake of fact crystallize at the time the offence was committed: R. v. Stevens, supra. The right against the introduction of self-incriminating evidence crystallizes at the time the evidence is sought to be introduced in a proceeding even although the testimony was originally provided well before the Charter came into force: Dubois v. The Queen, [1985] 2 S.C.R. 350.

At page 628, she deals with ongoing condition or status related cases:

Some rights and freedoms in the Charter seem to me to be particularly susceptible of current application even although such application will of necessity take cognizance of pre-Charter events. Those Charter rights the purpose of which is to prohibit certain conditions or states of affairs would appear to fall into this category. Such rights are not designed to protect against discrete events but rather to protect against an ongoing condition of state of affairs. Pre-trial delay under s. 11(b) is a good example: R. v. Antoine. Section 15 may also fall into this category. Morden J.A. recognized in Re McDonald and The Queen (1985), 21 C.C.C. (3d) 330 (Ont. C.A.) that there was such a thing as a continuing discriminatory practice under s. 15 of the Charter.

It would appear that it is not always possible to make sharp distinctions between event related and status related cases. A person’s status or ongoing condition may arise by virtue of a discrete event. For example, a widow or widower is a person whose spouse has died. The status or ongoing condition of widowhood arises because of the death of the spouse. A divorced person is one who has obtained a court order or decree of divorce. The status or ongoing condition of being divorced arises because of the court issuing a decree or order of divorce.

Counsel for the defendant seemed to suggest that when a status or ongoing condition arises because of the happening of an event, the case would always be event related. In her submission, the status of being divorced can only arise from a court order or decree of divorce and therefore cases involving divorce would always be event related. However, it is difficult to envisage many situations in which a status or ongoing condition does not arise from a discrete event. Perhaps being single (unmarried) is an example of a status that does not arise from a discrete event. But clearly, many other ongoing conditions would arise from discrete events. The proposition that the Charter cannot be invoked to protect against an ongoing violation of the Charter when that violation arises from a discrete pre-Charter event seems to me to be an all-encompassing approach that is not consistent with the approach of the British Columbia Court of Appeal in Konechny, supra, and the analysis of Wilson J. in Gamble, supra. If, in a given case, there is an ongoing violation of the Charter, Charter relief is not precluded simply for the reason that the ongoing violation arose from a discrete event that predated the Charter. It is necessary, in each case, to have regard for the facts and the applicable law in order to determine whether the focus is on a discrete event or an ongoing condition. More specifically, whether in any given case, the focus is on the discrete event or on the ongoing condition, will require consideration of (i) the provisions of the Charter upon which reliance is placed, (ii) where applicable, the statutory provision being challenged and (iii) the relevant event or ongoing condition.

(i) In the case at bar, it is subsection 15(1) of the Charter upon which reliance is placed. In Gamble, supra, Wilson J. expressed the view that section 15 may fall into the category of a provision designed to protect against ongoing discriminatory conditions. Morden J.A., in Re McDonald and The Queen (1985), 51 O.R. (2d) 745 (C.A.), recognized that there was such a thing as continuing discriminatory practices under section 15 of the Charter. In Benner v. Canada (Secretary of State), [1994] 1 F.C. 250 (C.A.), a recent decision of the Federal Court of Appeal, Létourneau J.A. recognized the application of section 15 to ongoing discriminatory practices although that approach, in his view, was not applicable in that case. At page 291 of his reasons he stated:

As it appears from this statement [of Wilson J. in Gamble, supra], it is important to determine the point in time at which the right to equality without discrimination under section 15 crystallizes. It also appears that there may be a continuing discriminatory practice which would call for an application of section 15 of the Charter although this would require that the Court take cognizance of pre-Charter events. To say that, however, is not to say that section 15 of the Charter applies every time one can establish that he still suffers from past discrimination. For section 15 to apply, there has to be an actual or an ongoing discrimination which deprives one of equal protection and benefit of the law. It is not enough for one to say that one still suffers from a discriminatory event or legislation which took place or existed prior to the Charter. Otherwise, just about every instance of past discrimination since the turn of the century could be reviewed under section 15, provided the victims still suffer from that past discrimination. [My underlining.]

These authorities satisfy me that while subsection 15(1) of the Charter may apply to a discrete event of discrimination, the subsection is broad enough to apply to discrimination of an ongoing nature as well.

(ii) Whether the statutory provision alleged to violate the Charter should be viewed as event related or ongoing condition related will require close inspection of the words of the provision itself. Is the primary focus of the impugned statutory provision which creates the alleged discrimination on an ongoing condition? Or does the context of the alleged discriminatory statutory provision suggest that significant regard is to be had to the event giving rise to an ongoing condition? If that event predates the Charter, application of the Charter would be retrospective and relief would not be available. Counsel for the defendant submitted that if the impugned provision makes reference to a date, as does subsection 53.2(1) of the CPP, the necessary implication is that primary regard is to be had to the event and not the ongoing condition that might also be contemplated by the provision. In such a case, in her view, the event cannot be treated as incidental and a retrospective application of the Charter would be involved. I would agree that a date in a statutory provision would seem to suggest that significant regard would have to be had to the event contemplated by the provision.

(iii) A final consideration relates to the event or ongoing condition. As I earlier stated, ongoing conditions often arise from discrete events. Where the facts indicate that both an event and an ongoing condition are present, it is necessary to return to the statutory provision being impugned to see if its primary focus is on the ongoing condition or on the event giving rise to the ongoing condition. In the case at bar, it is quite clear that if subsection 53.2(1) is event related, the relevant event, the granting of the plaintiff’s decree absolute of divorce, predated the coming into force of subsection 15(1) of the Charter and the retrospective application of the Charter would be involved. If subsection 53.2(1) is ongoing condition related, the plaintiff today has the condition or status of being divorced and no retrospectivity would be involved.

In this case, it is subsection 15(1) of the Charter that is being relied upon and, as I have stated, it is my view that it may be used to protect against ongoing discrimination. Moreover, while divorce may be viewed as an event, it is clearly also a status or ongoing condition. Thus, the first and third requirements for the prospective application of the Charter have been met. The difficult question in this case is whether the impugned statutory provision is event related or ongoing condition related.

Counsel for the plaintiff sought to rely on the decision of Regina v. St. Mary, Whitechapel (Inhabitants) (1848), 12 Q.B. 120; 116 E.R. 811. In Whitechapel, a woman’s husband died and an order was made for the widow’s removal from the parish in which she was residing. Before she was removed, the law relating to the removal of the poor was amended to restrain the removal of widows. The widow appealed her removal order on the ground that by virtue of the amendment to the poor law, she was rendered irremoveable from her home parish for at least twelve months. The respondents contended that as she had become a widow before the passing of the amendment, she was removeable.

In deciding the question and allowing the widow’s appeal, Lord Denman C.J. found the relevant statutory provision prospective, relating to future removals, even though reference to facts occurring before the enactment of the amendment was necessary. At page 127 of Q.B. he stated:

First: was the pauper irremoveable by stat. 9 & 10 Vict. c. 66, s. 2, which enacted that no woman residing in any parish with her husband at the time of his death shall be removed, nor shall any warrant be granted for her removal, from such parish for twelve months next after his death if she so long continue a widow? It was said that the operation of the statute was confined to persons who had become widows after the Act passed, and that the presumption against a retrospective statute being intended supported this construction: but we have before shown that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing. The clause is general, to prevent all removals of the widows described therein after the passing of the Act; the description of the widow does not at all refer to the time when she became widow: and we are therefore of opinion that the pauper was irremoveable at the time she was removed. [Underlining mine.]

The plaintiff’s claim in the case at bar is based on alleged discrimination created by subsection 53.2(1) of the CPP. Subsection 53.2(1) of the CPP has a commencement date of January 1, 1978. The statute in Whitechapel did not have a commencement date. This distinction was noted by Lord Denman C.J. when describing the statute:

… the description of the widow does not at all refer to the time when she became widow ….

In the case at bar, eligibility for pension credit splitting under subsection 53.2(1) requires that regard be had to when the decree absolute of divorce was granted. In my view, Whitechapel must be distinguished because, in the case at bar, the alleged discrimination created by the offending provision is focused on when a decree absolute of divorce was granted. This is especially the case because an application must be made within thirty-six months of the granting of the decree absolute. The description of a divorced person eligible for pension credit splitting is based on when the divorce was granted and on an application being brought within a specified period following the granting of the divorce. Indeed, the alleged discrimination arises out of the distinction made under subsection 53.2(1) between persons divorced before and after a specified date. The alleged discrimination created by the provision is clearly event related.

The plaintiff also sought to rely on Re Sanderson and Russell (1979), 24 O.R. (2d) 429 (C.A.). In that case, the Ontario Court of Appeal had to consider the application of the support provisions in Part II of the Family Law Reform Act, S.O. 1978, c. 2 [FLRA], to persons who had lived in a “common law” relationship before the Act came into force on March 31, 1978.

In dealing with whether the facts of that case would result in the retrospective application of the FLRA, Morden J.A., having regard to Whitechapel, supra, stated at pages 434-435:

When the legislation is understood this way it is not retrospective. This approach is supported by The Queen v. Inhabitants of St. Mary, Whitechapel (1848), 12 Q.B. 120 at p. 127, 116 E.R. 811, where the statute in question was “not properly called a retrospective statute because part of the requisites for its action (was) drawn from time antecedent to its passing”. In that case the statute was concerned with a person who became a “widow” and it was held not to be relevant when the woman became a widow, i.e., the statute was not retrospective if applied to a woman who became a widow before the statute became law. The same approach is applicable to the consideration of when a person becomes a “spouse”, provided that he or she is one at the time of the application. These types of situations may be contrasted with cases where the “facts” or “considerations” on which the statute acts are entirely in the past, such as completed transfers of land (Bingeman v. McLaughlin, [1978] 1 S.C.R. 548, 77 D.L.R. (3d) 25, 28 R.F.L. 58) or contractual rights which are being asserted by way of action at the time of commencement of the new legislation (Moon v. Durden (1848), 2 Ex. 22, 154 E.R. 389). [Underlining mine.]

As in Whitechapel, Re Sanderson and Russell was concerned with a statute that did not contain a date. In the case at bar, subsection 53.2(1) of the CPP is expressly concerned with when a person became divorced. For this reason, Re Sanderson and Russell must be distinguished. In my view, it would seem impossible in this case to apply the Charter in any way except to relieve against a provision which makes a distinction between persons who were granted divorces before January 1, 1978, versus those who were granted divorces on or after that date. One is inexorably driven to looking at the event and when it took place, the date of the issuance of the decree of divorce.

I am not unmindful that the plaintiff is attempting to characterize her complaint as being related to her ongoing condition and the alleged discrimination which she continues to suffer as a divorced individual. But that is not the basis of her complaint as it pertains to subsection 53.2(1). The discrimination she alleges is that created by the subsection as between spouses divorced before January 1, 1978, and those divorced on or after that date. If Charter relief was available, it would eliminate the distinction based on when persons were granted decrees absolute or orders of divorce. The alleged discrimination created by the provision is thus event related.

In this respect, counsel for the defendant relied upon the decision of the Federal Court of Appeal in Benner, supra. The issue in Benner involved the Citizenship Act. The Citizenship Act of 1947 [The Canadian Citizenship Act, S.C. 1946, c. 15] provided that a person would be considered a natural-born Canadian if born outside Canada to a Canadian father but not to a Canadian mother, unless she was unmarried. In 1977, a new Citizenship Act [S.C. 1974-75-76, c. 108] was enacted which eliminated this distinction for children born after February 14, 1977. However, persons born on or before February 14, 1977, to a Canadian mother married to a non-Canadian father, outside Canada must still apply for citizenship. Benner was born outside Canada on August 29, 1962 to a Canadian mother married to a non-Canadian father. Benner was a convicted criminal and his application for citizenship was denied. To get around the refusal of his application and to obtain Canadian citizenship, he relied on section 15 of the Charter to challenge what he alleged was continuing discrimination against persons born outside Canada on or before February 14, 1977, to Canadian mothers married to non-Canadian fathers.

Marceau J.A., was of the view that the critical event was Benner’s birth. He found, using the discrete event approach, that what Benner was really asking for was a retrospective application of the Charter which he refused. Létourneau J.A., took the same approach as Marceau J.A. Linden J.A., found the discrete event was the rejection of Benner’s application for citizenship which took place on October 17, 1989, after the coming into force of the Charter. While he refused Benner’s appeal, he did not do so on grounds relating to the retrospective application of the Charter.

It is of significance, in my opinion, that the majority of the Court of Appeal found that the legislation in question in Benner, focused on the birth of an individual, a discrete event. It follows that they adopted the discrete event approach and found that the application of the Charter would be retrospective in respect of a person born in 1962.

I have found that the plaintiff’s claim in this case, based on subsection 53.2(1) of the CPP, requires adoption of the discrete event approach and this would be consistent with the reasoning of the Federal Court of Appeal in Benner. To relieve against the alleged discrimination created by subsection 53.2(1) of the CPP would require the retrospective application of the Charter.

CONCLUSION

For the reasons stated earlier, although the preliminary question of law as set out by Giles A.S.P. did not define the plaintiff’s Charter claim and the specific law which is [5]alleged to offend the Charter, I have addressed only a claim based upon subsection 53.2(1) of the CPP. Because my decision is based solely on a claim alleging discrimination by virtue of that subsection, I must restrict my answer to the preliminary question by specific reference to subsection 53.2(1).

The answer to the preliminary question posed in this case is:

The plaintiff’s claim, based on alleged discrimination created by subsection 53.2(1) of the Canada Pension Plan, necessitates a retrospective application of the Charter and cannot support a viable cause of action.

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