Decision of the Court of Appeal for Ontario
Respecting Same-Sex Survivor Pension Benefits
The Corporate Services Committee recommends that:
(1)City of Toronto Council request the Federal Government not to appeal the decision of the Ontario Court of
Appeal; and
(2)upon the expiry of the appeal period, and no appeal having been taken, that City of Toronto Council:
(a)amend all by-laws governing pension plans provided by the City of Toronto and its Agencies, Boards and
Commissions to ensure equal access to survivor pension benefits by all employees of the City of Toronto, its Agencies,
Boards and Commissions, particularly same-sex employees and their spouses; and
(b)recommend to the Ontario Municipal Employees Retirement system (OMERS) Board to amend the statutes and
regulations governing the OMERS pension plan to provide same-sex survivor pension benefits to the employees of the
City of Toronto covered by this plan:
The Corporate Services Committee submits the following report (May 12, 1998) from the City Solicitor:
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.
Recommendation:
It is recommended 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
The following persons appeared before the Corporate Services Committee in connection with the foregoing matter:
-Ms. Karen McDuffy, Toronto Employee Working Group of Lesbian, Gay and Bisexual Issues, Access and Equity Centre; and
-Mr. William Dwyer.