May 12, 1998
To:Corporate Services Committee
From:City Solicitor
Subject:Decision of the Court of Appeal for Ontario respecting same sex survivor pension benefits.
Purpose:
The purpose of this report is to inform the Committee and Council on the implications for the new City of Toronto of the
Rosenberg case relating to same sex survivor pension benefits.
Recommendations:
That this report be received and forwarded to Council for information.
Council Reference/Background/History:
The Corporate Services Committee at its meeting of April 27, 1998 requested me to submit a report to the meeting of the
Corporate Services Committee scheduled for May 25, 1998 on the implications of the ARosenberg@ decision made by the
Court of Appeal for Ontario respecting the provision of same sex survivor pension benefits.
Council at its meeting of February 4, 5, and 6, 1998 adopted the motion of Councillor Rae to approve the extension of
benefits (excluding survivor pension benefits) to same sex partners of City of Toronto employees.
Comments and/or Discussion and/or Justification:
By decision dated April 23, 1998, the Court of Appeal for Ontario unanimously allowed the appeal from the decision of
Charron J. (as she then was) of the Ontario Court (General Division) dismissing an application of Nancy Rosenberg,
Margaret Evans and others (the ARosenberg case@) against the Attorney General of Canada for a declaration that the
opposite sex definition of Aspouse@ in ss.252(4) of the federal Income Tax Act (the AAct@) infringed section 15 of the
Canadian Charter of Rights and Freedoms (the ACharter@) and is not saved as a reasonable and justifiable limitation
under section 1 of the Charter.
The Court of Appeal for Ontario per Abella J.A. in the Rosenberg case concluded that the opposite sex definition of
Aspouse@ in ss. 252(4) of the Act infringed section 15 (the equality rights provision) of the Charter. Following the
reasoning of the recent Supreme Court of Canada decision in Vriend v. Alberta which declared unconstitutional the
exclusion of sexual orientation as a prohibited ground of discrimination from the human rights legislation in the province
of Alberta and applying a more concise analytical framework for determination of reasonable limitations under section 1 of
the Charter, the Court of Appeal for Ontario concluded that the impugned provision of the Act is not saved under section 1
of the Charter. As a result, the Court of Appeal for Ontario made a declaratory order that the opposite sex definition of
Aspouse@ in the Act as it applies to the registration of pension plans or amendments to registered pension plans is
unconstitutional and is remedied by reading the words Aand the same sex@ into the definition of spouse in the Act.
Prior to the decision of the Court of Appeal for Ontario in the Rosenberg case, Revenue Canada took the position that,
given the opposite sex definition of Aspouse@ in the Act, the inclusion of same sex survivor pension benefits in registered
pension plans may result in the de-registration of registered pension plans which would have serious tax consequences for
members of registered pension plans. Further, the government of Canada did not introduce amendments to the opposite sex
definition of Aspouse@ in the Act to include same sex partners despite requests to do so by various groups including a
request by the former Municipality of Metropolitan Toronto. In the absence of a successful appeal of the Rosenberg
decision by the Attorney-General of Canada to the Supreme Court of Canada for which leave must be granted or the
invocation of the Anotwithstanding@ clause in the Charter by Parliament, the decision of the Court of Appeal for Ontario
means that same sex survivor pension benefits can be provided directly within a registered pension plan without risking the
de-registration of registered pension plans. It is not known at this time whether the Attorney-General of Canada intends to
seek leave to appeal the Rosenberg case to the Supreme Court of Canada which application must be made within sixty days
of the decision of the Court of Appeal for Ontario or whether the government of Canada intends to introduce amendments
to the Act to accord with the decision in the Rosenberg case.
Pensions and pension benefits for municipal employees in the province of Ontario including employees of the new City of
Toronto and its agencies, boards and commissions is primarily provided by the Ontario Municipal Employees Retirement
System (AOMERS@) and is administered by the OMERS Board exercising powers delegated by statute and regulation.
The extension of same sex survivor pension benefits and the costs related thereto as determined by the plan=s actuaries are,
therefore, matters for decision by OMERS. I am advised that the Chief Financial Officer and Treasurer and the Executive
Director of Human Resources and Amalgamation intend to meet with the officials of OMERS to discuss, inter alia, the
issue of the provision of same sex survivor pension benefits within OMERS. Consideration should be given, therefore, to
requesting a joint report from the Chief Financial Officer and Treasurer and the Executive Director of Human Resources
and Amalgamation on the position of OMERS in this matter, including the actuarial costs, the source of funding and in
financial impacts for the plan members arising out of the provision of such benefits.
Some employees of the new City of Toronto are members of the Metropolitan Toronto Pension Plan, the City of Toronto
Civic Employees Pension and Benefit Fund, and the City of York Employees Pension and Benefit Fund, the City of
Toronto Fire Department Superannuation and Benefit Fund, and the Etobicoke Pension Plan (which is in winding-up
proceedings). Also, some members of the Toronto Police Service are members of the Police Benefit Fund. These six plans
are governed and administered by by-laws of the former Municipality of Metropolitan Toronto and the former Cities of
Toronto, York and Etobicoke. The extension of same sex survivor pension benefits in these six pension plans and the costs
related thereto to the new City of Toronto is, therefore a matter for decision by the trustees of the plans and City Council
and which will require amendments by City Council to the by-laws governing these plans. On the assumption that the
Rosenberg case will stand, consideration should be given to requiring the Chief Financial Officer and Treasurer and the
Executive Director of Human Resources and Amalgamation, in consultation with the trustees of the plans and the City
Solicitor, to report jointly on the necessary amendments required to be made to the plans to provide same sex survivor
pension benefits for employees of the new City of Toronto covered by these plans, together with an estimate of the
actuarial costs and the source of funding to provide such benefits.
There are also complex issues which are beyond the scope of this report but which could be included in the aforementioned
reports relating to whether the Rosenberg case has a retrospective or prospective effect, the position of Revenue Canada in
relation thereto and whether the extension of such benefits within OMERS and the other plans will have application to
active and retired employees.
If the decision of the Court of Appeal for Ontario in the Rosenberg case is either not appealed or is upheld on appeal and is
not overridden by the invocation of the Anotwithstanding@ clause in the Charter, then, in my opinion, a failure to provide
same sex survivor pension benefits in pension plans that provide such benefits to opposite sex spouses, such as OMERS
and the six plans referred to above will constitute discrimination in employment under the Ontario Human Rights Code.
Conclusions:
The implications of the Rosenberg case for the new City of Toronto relate to the provision of same sex survivor pension
benefits within a registered pension plan which, for municipal employees in Ontario is the responsibility of OMERS to
determine including matters relating to funding such benefits. Further, the Rosenberg case has the same implications for the
pension plans governed by by-laws of the former municipalities.
Contact Name:
George S. Monteith - 392-8062
H.W.O. Doyle
City Solicitor
Legal Services
