The Supreme Court of Canada has ruled that denying Canada Pension Plan benefits to some surviving partners of same-sex relationships is discriminatory and unconstitutional under the equality provisions of the Charter of Rights and Freedoms.

The ruling was in response to a class-action challenge to Ottawa's policy of denying same-sex survivors benefits to people whose partners died before 1998. That date was set when Parliament passed legislation in 2000 that broadened benefit rights for gay couples.   

George Hislop, right, seen here with lawyer Douglas Elliott in 2001, didn't live to see the Supreme Court rule in his favour.
(Aaron Harris/Canadian Press)

The petitioners had also been seeking retroactive payment of all benefits not paid, but the Supreme Court ruled against this, saying surviving partners from gay unions were entitled to 12 months of benefits after the death of a same-sex spouse but no more.

The ruling said there was no evidence that Ottawa was acting in bad faith by denying benefits to some surviving members of same-sex relationships. It also noted granting retroactive benefits could impose undue financial burdens on the Canada Pension Plan and encroach upon the rights of Parliament to pass legislation and set limits on government payments.

Toronto activist launched case

The case was launched by the legendary Toronto gay rights activist George Hislop, who took issue with Ottawa's decision to deny him survivors benefits after the death of his partner of 28 years in 1986.

Hislop died from inoperable cancer in 2005. About 1,500 people were named as co-petitioners in the case.

Hislop's lawyer argued that the plan discriminated against certain gay and lesbian survivors of same-sex relationships because it only paid benefits to people whose partners had died after Jan. 1, 1998.

That date was set in July 2000 when the Liberal government passed legislation that gave same-sex couples full pension rights, with benefits to be paid to surviving spouses. 

More than partial victory: lawyer

The lead lawyer for the plaintiffs, Douglas Elliott of Toronto, said he was disappointed that his clients won't be receiving large amounts of retroactive benefit payments, "but to call this a partial victory is to take away from the fact that we won on the fundamental issue, ending discrimination against gay and lesbian surviving partners."

One of the plaintiffs, Al McNutt from Truro, N.S., said his deceased partner would have wanted him to have all of the retroactive benefits but the ruling was a breakthrough nonetheless.

"For me it was never about the money, it was more about the equality and feeling like our relationship was finally recognized," McNutt said.

During legal proceedings, financial experts estimated that paying full retroactive benefits to all of the plaintiffs would cost Ottawa about $80 million. The Canada Pension Plan has assets of around $98 billion.