Hislop et al. are challenging the constitutionality of the changes made to the Canada Pension Plan to benefit same-sex couples. They state that the amendments do not go far enough, as they do not apply retroactively to survivors whose same-sex partner died before 1998. The amendments only allow same-sex individuals whose partners died after January 1, 1998 to receive pension benefits. The respondents were successful in the lower courts which the government appealed.
- Does the fact that the amendments were remedial legislation exclude them from Charter scrutiny?
The government argues that remedial legislation that was intended to address the constitutionality of a statute for relief on a temporal basis cannot be subject to a Charter challenge. The government lawyer agrees that this legislation draws a distinction – it draws a distinction between groups who were discriminated against before 1998, and those groups who were discriminated against after 1998. They are exactly the same, and the basis of the discrimination is time, and time is not an enumerated or analogous ground.
LeBel and Rothstein, writing for the majority, state that the fact that the amendment was remedial has no bearing on whether or not it can be subject to Charter scrutiny. They then argue that the ground in this case is not "temporal", but rather sexual orientation because the purpose of the amendment was to bring equality to same-sex couples. Therefore, the majority agrees with the lower court that the correct comparator group in this case is survivors of opposite sex relationships whose partners died before 1998. The question to ask is whether the legislation properly remedies the discrimination against same-sex couples, and the answer is no, thus the appeal is dismissed.
The fact that a government action is remedial in nature does not exclude it from Charter scrutiny; even if it helps to eliminate discrimination, if it still leaves relevant areas untouched and discrimination continues, then this must be addressed.