The Supreme Court of Canada has affirmed decisions by the British Columbia Supreme Court and Court of Appeal that provisions of the Public Service Superannuation Act (PSSA) and the Canadian Forces Superannuation Act (CFSA), which reduce a supplementary death benefit (SDB) based on the member’s age at the time of death, do not infringe section 15 of the Canadian Charter of Rights and Freedoms.
In Withler v. Canada (Attorney General), a class proceeding was initiated by the surviving spouses of deceased members entitled to benefits pursuant to the PSSA and the CFSA. The spouses received a SDB upon the death of the member. The SDB was reduced due to the age of the member at death, pursuant to provisions in the PSSA and the CFSA which permitted a 10% reduction in death benefits for every year the age of the plan member exceeded 65 (PSSA) or 60 (CFSA) at the time of death. In advancing their claim, the spouse’s argued that the SDB reduction created a distinction and imposed a disadvantage on member spouses based on age, contrary to s. 15(1) of the Charter.
In dismissing the Charter claim, the SCC applied the two-part test for assessing s. 15 claims, as established in previous jurisprudence: (1) does the law create a distinction that is based on an enumerated or analogous ground; and (2) does the distinction create a disadvantage by perpetuating disadvantage or prejudice, or stereotype to the claimant group?
Since the SDB reduction provisions are age-related, the Court concluded that such provisions constituted an obvious distinction based on an enumerated ground.
Moving to the second part of the test, the SCC agreed with the Court of Appeal’s approach, and considered the SDB in relation to the other benefits provided under the PSSA and CFSA when determining whether the claimants had been denied an equal benefit of the law. Viewing the benefit package as a whole, the Court held that it did not perpetuate discrimination because any reduction of the SDB paid to spouses of older employees was offset to some degree by the surviving spouse’s survivor pension.
The Withler decision confirms that age-based differences, which are the hallmark of most pension arrangements, will not necessarily be found to be discriminatory, if the differences make sense in the broader context of the entire arrangement.