View cases - Stewart McKelvey

28[138] In Martin, the Supreme Court decided three questions. First, that the Appeals Tribunal hadthe jurisdiction to decide Charter issues relating to the provisions of its enabling statute; second,that the provisions in question were contrary to s.15(1) of the Charter and were not saved by s.1;and third, the constitutional remedies available to the Appeals Tribunal were limited todisregarding the impugned provisions and ruling on the applicant’s claim as if the provisions werenot in force. It did not deal with the question of when a retroactive remedy should or should not beawarded.[139] Whether it was because the Appeals Tribunal did not apply these provisions or because theSupreme Court decided that they were of no force and effect, the result for Martin was the same.He was awarded the retroactive benefits he sought because there was no longer any legal basis todeny them.2010 CHRT 27 (CanLII)[140] The Vilven and Kelly situation is different. What this Tribunal decided on the Charterissue was that s.15(1)(c) of the CHRA was not available as a defense for the respondents. But thisfinding did not trigger any remedies. It did not operate in the same way as the decision in Martin.It did not confer on the complainants any remedy. That remained to be determined.[141] The facts in Hyslop are as follows. To be entitled to a survivor’s pension under the CanadaPension Plan (“CPP”), the survivor had to be married to the contributor or be a common-lawpartner of the opposite sex in a conjugal relationship at the time of the contributor’s death.[142] If so qualified, the survivor could apply for a survivor’s pension which would be payablefor each month after the death of the contributor. If the application was not received within12 months of the contributor’s death, the arrears that could be claimed were limited to the12 months preceding the receipt of the application.[143] In 2000, following the Supreme Court’s decision in M v. H, [1999] 2 S.C.R. 3, the federalgovernment amended the CPP to extend survivor benefits to same-sex partners by changing thedefinition of “common-law partner” so that there was no reference to the gender of the partner.