Law V. Canada (Minister of Employment and Immigration)

Abstract

The Women's Court of Canada is an innovative project engaged in systematically rewriting Canadian equality law by issuing its own versions of leading Supreme Court of Canada equality-related decisions. The judgment of the WCC in Law v. Canada (Minister of Employment and Immigration) traces the emergence of dignity as the touchstone of section 15 equality rights, and reviews the factors relevant to finding a violation of dignity from the Supreme Court of Canada's 1999 decision in Law. These factors are reinterpreted as pointing to three forms of indignity that may be inflicted by law or policy: grounding law or policy in prejudice, the use of, or reliance on, stereotype, and exclusion from dignity-constituting benefits. In analyzing the Canada Pension Plan (CPP) limitation on eligibility for a spousal survivor's pension to those over age thirty-five, the Women's Court finds that the exclusive focus on the age-related differential treatment in the courts below provides an incomplete picture of the program and its rationale. The vast majority of survivor pension recipients are women, and this part of the CPP cannot be properly understood or evaluated absent this gendered context. Denying any assistance to those under a certain age differentially affects mainly women in that age group. Further, the assumption that losing a spouse causes no financial hardship to younger survivors, even in the short term, adopts a male norm by treating as typical of younger spouses those who are employed and fully. self-sufficient. Given the roadblocks women typically encounter in their efforts to be self-sufficient, the financial dislocation due to a spouse's death may easily be severe enough to impair women's ability to live lives of dignity and be full participants in society. Accordingly, the Women's Court reverses the Supreme Court decision, and holds that the CPP survivor pension scheme is discriminatory on the combined basis of age and sex. Based on the arguments put forward in the courts below, the legislation cannot be saved under section 1.