Judgments

T-1407-96

Harbans Singh Pawar, for Himself and as Representative of All Those Also Improperly Denied Benefits (Plaintiff)

v.

Her Majesty the Queen (Defendant)

Indexed as: Pawarv. Canada (T.D.)

Trial Division, Reed J."Vancouver, September 11; Ottawa, October 9, 1998.

Practice — Judgments and orders — Summary judgment — Application for dismissal of claim on ground no genuine issue for trial — Federal Court Rules, r. 216 permitting Court to grant summary judgment if able on whole of evidence to find facts necessary to decide questions of fact, law — Although could not conclude no genuine issue for trial, actions should not be deferred for trial on mere suggestion further evidence may be made available, or law in state of confusion — Responding party having positive responsibility to go beyond mere supposition; Court having duty to take hard look at merits of action at preliminary stage — Evidence establishing essential facts relevant to plaintiff's claim before Court — Proceeding to trial would add detail, but not significant additional evidence — Given costs involved, trial neither necessary nor justified.

Constitutional law — Charter of Rights — Equality rights — Under Old Age Security Act entitlement to full monthly pension at age 65 requiring 10 years of residence in Canada immediately preceding day on which person's application approved, or 40 years of residence in Canada since age 18 — Plaintiff coming from India in 1987 when 58 — At age 65 denied old age security pension benefits because not meeting requirement of being resident in Canada for 10 years — Legislation drawing distinction leading to denial of equal benefit of law — Distinction based on residence in Canada not based on characteristic enumerated in Charter, s. 15 — Nor does expansion of group entitled to benefits by reference to entitlement under pension plans of countries with which Canada having reciprocal agreements convert distinction to one based on national origin — Expansion not based on citizenship, national origin, but on entitlement under plans in other countries — Group of individuals not entitled to benefits not comprising category analogous to those listed in s. 15 — Category of persons not qualifying for benefits not suffering historical disadvantage — Pension entitlement based on residency not reinforcing societal stereotypes as no stereotypes particular, unique to this group — Persons over 65 who have not lived in Canada for 10 years not discrete, insular minority, but diffuse, disparate group — Members of group not facing discrimination because not residing in Canada for 10 years — Applying for social assistance not denial of essential human dignity — Distinction not offending Charter, s. 15.

Health and Welfare — Old Age Security Act — Argument residency requirement discriminatory, contrary to Charter equality provision — Came from India at 58 — Denied benefits at 65 as not resident 10 years — Canada not having reciprocal agreement with India as its hybrid form of provident fund does not coordinate with Canadian legislation — Argued that reliance on provincial social assistance carries stigma — Plaintiff not member of group suffering from stereotyping, social prejudice — Action dismissed upon application for summary judgment, there being no Charter violation.

This was an application for summary judgment dismissing the plaintiff's claim either on the ground that there was no genuine issue for trial or, because the facts necessary to decide the claim were before the Court and they disclosed that the plaintiff's claim could not succeed. The plaintiff argued that the residency requirement of the Old Age Security Act was discriminatory and therefore contrary to Charter, section 15. Entitlement to a full monthly pension at age 65 requires 10 years of residence in Canada immediately preceding the day on which the person's application is approved, or 40 years of residence in Canada since the age of 18. An individual who does not meet the residency requirement may become entitled under the Act to a partial pension based on the total number of years of residency, once resident in Canada for 10 years. Also, Canada has entered into reciprocal agreements with 34 countries that have a public pension system that can be coordinated with Canada's Old Age Security program and that are prepared to grant reciprocity to persons who reside in those countries, but have previously lived in Canada. Individuals who have resided in or contributed to the social security scheme of any of those signatory countries may add periods of residence in those countries to their period of Canadian residence to become eligible for full benefits in Canada. The plaintiff came from India in 1987 when he was 58. At age 65 he was denied old age security pension benefits because he did not meet the requirement of being resident in Canada for 10 years. Nor did he qualify for the pension through a reciprocal agreement. India's hybrid form of provident fund does not coordinate with Canada's Old Age Security program. After having been in Canada for almost 10 years, he again applied and was granted a partial pension when he fulfilled the residency requirement. The applicant asserted that it was essential to a senior citizen's dignity to have the security and autonomy that comes with a source of income. He organized an association of seniors, most of whom rely on social assistance which they feel carries a stigma. Federal Court Rules, 1998, rule 216 permits the Court to grant summary judgment if it is able, on the whole of the evidence, to find the facts necessary to decide the questions of fact and law.

Held, the application for summary judgment should be allowed; the action should be dismissed.

It could not be concluded that no genuine issue for trial existed. Many motions and hearings have taken place that required some consideration of the merits of the claim, and the claim was not identified as one lacking a genuine issue for trial. But actions should not be deferred for trial at the mere suggestion that further evidence may be made available or that the law is in a state of confusion. The responding party has a positive responsibility to go beyond mere supposition and the court has a duty to take a hard look at the merits of an action at this preliminary stage. Evidence establishing the essential facts relevant to the plaintiff's claim were before the Court. Proceeding to trial would add detail, but not significant additional evidence. Proceeding to trial, given the costs involved, was neither necessary nor justified.

The first step in assessing whether there has been a violation of Charter, section 15 is to determine whether there is a distinction which results in the denial of equality before or under the law, or of equal protection or benefit of the law. The second is to determine whether this denial constitutes discrimination on the basis of an enumerated or analogous ground. The nature of the distinction, including whether it involves a personal characteristic, is a matter to be considered at the second stage.

The legislation draws a distinction that leads to a denial of an equal benefit of the law. But a distinction based primarily on the length and timing of an individual's residence in Canada, is not based on an enumerated ground. Nor does the expansion of the group who are entitled to benefits by reference to entitlement under the pension plans of countries with which Canada has reciprocal agreements convert the distinction to one based on national origin. In the first place, the primary feature of the class is related to residence in Canada; the expansion by reference to entitlement under various plans of other countries is peripheral. More importantly that expansion is not based on citizenship or national origin"it is based on entitlement under the plans that exist in those other countries, which may or may not be based on residence. Reference to particular countries is not to identify the national origin of the individual concerned.

The group of individuals who are not entitled to benefits simply do not comprise a category analogous to those described in Charter, section 15. Indicators of an analogous ground include whether the targeted group has suffered historical disadvantage, whether it is a discrete and insular minority, or whether the distinction in question was made on the basis of presumed group or personal characteristics. The category of persons that do not qualify for benefits are not persons who can be said to have suffered historical disadvantage. Nor is the group one that has suffered from stereotyping and social prejudice. Not granting an old age pension until someone has lived in Canada for 10 years immediately preceding the application for benefits or in accordance with the other residency requirements of the legislation does not send a message that reinforces societal stereotypes. It is not akin to denying spousal benefits to gay and lesbian couples. The distinction does not reinforce societal stereotypes, as there are no stereotypes particular and unique to this group. Nor does it send any particular message other than that the residency requirement applicable to all applicants has not been met. Persons over age 65 who have not lived in Canada for 10 years or fulfilled the other alternate requirements of the legislation are not a discrete and insular minority, but are a diffuse and disparate group. Individual members of the group may face discrimination in other circumstances based on their age or based on a particular national origin, but they do not face it for the specific reason that they have not lived in Canada for 10 years. Nor is it clear that length of residence in Canada is a personal characteristic, at least not herein.

While the plaintiff asserts that applying for provincial social assistance affronts the dignity of those seniors who find it necessary to do so, the Court was not persuaded that it was the kind of denial of essential human dignity referred to by Cory J. in Egan. The 10-year residency requirement together with the other requirements that define the class of persons that are denied benefits may be an arbitrary distinction, but it does not define a class that warrants constitutional protection.

statutes and regulations judicially considered

An Act to amend the Old Age Security Act, S.C. 1976-77, c. 9.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15.

Federal Court Rules, 1998, SOR/98-106, RR. 213, 214, 215, 216, 217, 218, 219.

Old Age Security Act, R.S.C., 1985, c. O-9, s. 3.

Rules of Civil Procedure, O. Reg. 560/84, R. 20.

Western Grain Stabilization Act, S.C. 1974-75-76, c. 87.

cases judicially considered

applied:

Vaughan v. Warner Communications, Inc. et al. (1986), 56 O.R. (2d) 242; 10 C.P.C. (2d) 205; 20 C.P.R. (3d) 492 (H.C.); Vriend v. Alberta, [1998] 1 S.C.R. 493; (1998), 156 D.L.R. (4th) 385; Miron v. Trudel, [1995] 2 S.C.R. 418; (1995), 124 D.L.R. (4th) 693; 29 C.R.R. (2d) 189; [1995] I.L.R. 1-3185; 10 M.V.R. (3d) 151; 181 N.R. 253; 81 O.A.C. 253; 13 R.F.L. (4th) 1.

distinguished:

Pearkes v. Canada (1993), 72 F.T.R. 90 (F.C.T.D.); Lavoie v. Canada, [1995] 2 F.C. 623; (1995), 125 D.L.R. (4th) 80; 31 C.R.R. (2d) 109; 95 CLLC 210-023 (T.D.); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255.

considered:

Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 124 D.L.R. (4th) 609; C.E.B. & P.G.R. 8216; 95 CLLC 210-025; 29 C.R.R. (2d) 79; 182 N.R. 161; 12 R.F.L. (4th) 201; Haig v. Canada; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; (1993), 105 D.L.R. (4th) 577; 16 C.R.R. (2d) 193; 156 N.R. 81; Peterson v. Canada (Minister of State, Grains and Oilseeds) (1995), 124 D.L.R. (4th) 96; 30 C.R.R. (2d) 349; 108 N.R. 338 (F.C.A.); Canada (Attorney General) v. Pattinson (1990), 123 N.R. 156 (F.C.A.).

referred to:

Collie Woolen Mills Ltd. v. R., [1996] 2 C.T.C. 152; (1996), 96 DTC 6146; 107 F.T.R. 93 (F.C.T.D.); R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 39 C.R.R. 306; 96 N.R. 115; 34 O.A.C. 115; Wong v. Canada, [1997] 1 F.C. 193; (1996), 119 F.T.R. 306 (T.D.); affd [1997] F.C.J. No. 1797 (C.A.) (QL); leave to appeal to S.C.C. refused [1998] 1 S.C.R. xvi; Clarken et al. v. Ontario Health Insurance Plan (1998), 109 O.A.C. 363 (Ont. Div. Ct.); McCarten et al. v. Prince Edward Island (1994), 117 Nfld. & P.E.I.R. 1; 112 D.L.R. (4th) 711; 365 A.P.R. 1 (C.A.); leave to appeal to S.C.C. refused [1994] 2 S.C.R. viii.

authors cited

Canada. House of Commons Debates, Vol. III, 2nd Sess., 30th Parl., 1977, at pp. 2834-2836.

appearances:

Lewis Spencer for plaintiff.

Edward R. Sojonky for defendant.

solicitors of record:

Lewis Spencer, Vancouver, for plaintiff.

Deputy Attorney General of Canada for defendant.

The following are the reasons for judgment rendered in English by

Reed J.: This is an application by the defendant for summary judgment dismissing the plaintiff's claim. The argument proceeds on two bases: there is no genuine issue for trial or, alternatively, the facts necessary to decide the claim are before the Court and they disclose that the plaintiff's claim cannot succeed.

The plaintiff's claim is based on section 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter). He claims on his own behalf, and as representative for others who have also been denied old age security benefits under section 3 of the Old Age Security Act, R.S.C., 1985, c. O-9 because they could not fulfil the residency requirements thereof. The plaintiff argues that the residency requirement is discriminatory and therefore unconstitutional. Subsection 15(1) of the Charter provides:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The relevant provisions of the Old Age Security Act regarding entitlement to a full monthly pension at age 65 can be summarized as requiring 10 years of residence in Canada immediately preceding the day on which the person's application is approved or 40 years of residence in Canada since the age of 18. If the applicant does not have 10 years of residence in Canada immediately preceding the application for benefits or if there was any period of absence from Canada during those 10 years, the individual must demonstrate a residence in Canada after the age of 18 that totals three times the aggregate of all periods of absence within the 10 years, and that the individual resided in Canada for a year immediately prior to the approval of the application for a pension. An individual who has not been resident in Canada in accordance with these provisions may become entitled under the Act to a partial pension based on the total number of years of their residency, once they have been resident in Canada for 10 years.

Also, Canada has entered into reciprocal agreements with 34 countries under which individuals who have resided in or contributed to the social security scheme of any of those signatory countries may add periods of residence in those countries to their period of Canadian residence to become eligible for full benefits in Canada. These agreements are signed with countries that have a public pension system that can be coordinated with Canada's old age security program and that are prepared to grant reciprocity to persons who reside in those countries but have previously lived in Canada.

The possibility of partial pensions and reciprocal agreements with other countries was introduced into the Act by amendment in 1977 [An Act to amend the Old Age Security Act, S.C. 1976-77, c. 9]. Mr. Lalonde, Minister of National Health and Welfare, introduced the amendments at second reading, explaining their purpose in the following terms (House of Commons Debates, Vol. III, 2nd Sess., 30th Parl., at pages 2834-2836):

The amendments contained in the bill mean that over half a million residents of Canada may eventually gain access to the social security credits they have acquired overseas. They will also ensure greater equity of treatment among old age security pensioners by relating the basic old age security pension more directly to actual participation in Canadian society, and will bring greater consistency between this program and the other components of the Canadian retirement income system which are directly related to it.

. . .

The amendments would authorize inclusion of the old age security program in international agreements which would make benefits portable to and from countries with which Canada may negotiate agreements. Such agreements would directly benefit a large number of immigrants to this country, especially those who have chosen to retire in Canada to be near their children and grandchildren, many of whom find their foreign pensions frozen at the level at which they were on the day they left their country of origin, and eroded by inflation and devaluation. The central purpose of reciprocal international agreements is to protect migrants who spend portions of their working lives in more than one country. Such people cannot always meet the minimum eligibility requirements of the mandatory social security programs to which they have contributed.

. . .

Secondly, I would like to say a few words about the single eligibility requirement which is found in the proposed bill. Forty years hence, the same, single eligibility requirement will apply to every resident of Canada: The OAS pension will be acquired a year at a time, through residence in Canada after age 18, over a maximum 40-year period. Partial pensions will be available for those with less than 40 years' residence based on one-fortieth of a full pension for each year of residence in Canada. A minimum of ten years of residence will be required for any pension to be payable in Canada.

. . .

People who have never resided in Canada and who do not hold an immigrant visa will henceforth be governed by the new rules and earn their pension a year at a time, as will every other legal resident of Canada.

The plaintiff came from India to Canada on May 14, 1987, when he was 58 years old. He came as a sponsored immigrant. His son sponsored him for landing, agreeing to provide or assist in providing adequate lodging, care and maintenance for his father for 10 years. This is a standard commitment required from individuals who sponsor dependent relatives for landing. On February 27, 1995, after the plaintiff became 65, he applied for an old age security pension. He was denied benefits because he did not meet the requirement of being resident in Canada for 10 years. Nor did he qualify for the pension through a reciprocal agreement. India is not a country with whom an agreement exists because India does not have a public pension system. It has what is described as a hybrid form of provident fund that does not coordinate with Canada's Old Age Security Act. On May 5, 1997, after he had been in Canada almost 10 years, he again applied and was granted a partial pension when he fulfilled the residency requirement. At the same time, he applied for a guaranteed income supplement, which is provided to seniors with insufficient income. (He presently receives a total of $858.01 per month, $101.79 as old age security pension and $756.22 as the guaranteed income supplement.)

Suitability for Summary Judgment Decision?

Rules 213-219 of the Federal Court Rules, 1998, SOR/98-106, deal with summary judgment applications. Rule 216, upon which the defendant relies is reproduced below:

216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.

(2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is

. . .

(b) a question of law, the Court may determine the question and grant summary judgment accordingly.

(3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law. [Underlining added.]

I am not persuaded that one can conclude that no genuine issue for trial exists. On its face, the claim cannot be said to fall into that category. In addition, there is merit to counsel for the plaintiff's argument that many motions and hearings have taken place that required some consideration of the merits of the claim, and the claim was not identified as one lacking a genuine issue for trial. I do not agree, however, that it is too late to bring a motion for summary judgment.

The question is whether, pursuant to subsection 216(3) of the Rules, "the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law" that are in dispute. The evidence before the Court consists of an agreed Statement of facts, an affidavit by Mr. Pawar, an affidavit by a Mr. de March, Director, Legislation Development Division, Programs Directorate, Income Security Programs Branch of the Department of Human Resources Development, and part of the cross-examination of Mr. de March on his affidavit.

Mr. Pawar's affidavit asserts that it is essential to a senior citizens' dignity that they have the security and autonomy that comes with a source of income. He helped organize an association of seniors that have been denied an old age security pension that comprised 1 148 members on August 13, 1997, called the Old Age Security Benefits Forum. He estimates that 75% of the seniors that he represents rely on British Columbia Social Assistance in place of the old age security pension, and that they feel that relying on social assistance carries a stigma. The plaintiff asserts that he was forced to rely on social assistance from December 1995, when he was first denied an old age security pension, until June 1997 when he met the 10-year residency requirement and became entitled to the partial old age security pension as well as the guaranteed income supplement. I assume his son was unable to honour the commitment he had made to provide financial support for his father for 10 years. The plaintiff asserts that he believes the reason for imposing the 10-year residency requirement is purely financial and that it is not appropriate to proceed by way of summary judgment at this late stage of the proceedings. Mr. Pawar was not cross-examined on his affidavit.

Mr. de March's affidavit sets out some of the history of the Old Age Security Act, makes comments on what Mr. de March considers to be its purpose and the purpose of the residency requirements. He provides a list of the countries with whom Canada has a reciprocal agreement and a copy of one of the agreements, that is the Agreement with New Zealand. He was cross-examined on this affidavit and parts of that cross-examination were placed before the Court by counsel for the plaintiff.

Counsel for the plaintiff stated that if this case were to go to trial, the Court could see and hear Mr. de March. In counsel's view Mr. de March was not able to give a credible explanation of the purpose of the residency requirements in the legislation. In addition to the evidence already before the Court, counsel for the plaintiff stated that he plans to call a gerontology expert to give evidence concerning the affront to dignity that seniors experience when they do not have adequate economic resources.

With respect to the desire to cross-examine Mr. de March before the Court, it must be noted that Mr. de March's explanation of the purpose of the Old Age Security Act and of the residency requirements would not, in any event, carry much weight. Legislative provisions are interpreted by reference to the text of the legislation and other related statutes, as well as the usual sources relied upon for that purpose. These may include the debates in Parliament, the proceedings of parliamentary committees, and reports leading to the enactment of the legislation, but one civil servant's after-the-fact opinion does not carry a great deal of weight. With respect to the desire to call a gerontology expert to give evidence of the affront to dignity that seniors experience, this has been set out in Mr. Pawar's affidavit and he has not been cross-examined on that affidavit. Thus such evidence, albeit not from an expert, is already before the Court.

Counsel for the defendant, who prefers to see a decision made on the basis of the evidence as it now exists, indicated that if the case went to trial he would likely call four witnesses. These would probably include Mr. de March and an expert to give evidence respecting the international agreements.

Some of the principles applicable when deciding whether to proceed by way of summary judgment were discussed in Collie Woolen Mills Ltd. v. R., [1996] 2 C.T.C. 152 (F.C.T.D.). In that case Mr. Justice Richard made reference to decisions relating to Rule 20 of the Ontario Rules of Civil Procedure [O. Reg. 560/84]. A particularly pertinent explanation is found in Vaughan v. Warner Communications, Inc. et al. (1986), 56 O.R. (2d) 242 (H.C.), at page 247:

The specific changes to the summary judgment rule and the spirit in which other rules are changed indicates in my respectful view that Rule 20 should not be eviscerated by the practice of deferring actions for trial at the mere suggestion that further evidence may be made available or that the law is in a state of confusion. The responding party has a positive responsibility to go beyond mere supposition and the court now has the duty to take a hard look at the merits of an action at this preliminary stage. [Underlining added.]

I am convinced that in the present case evidence establishing the essential facts relevant to the plaintiff's claim are before the Court. Proceeding to trial would add detail but not significant additional evidence. Proceeding to trial, given the costs involved, is neither necessary nor justified.

Charter Issue"Analysis

The first step in assessing whether there has been a violation of section 15 of the Charter is to determine whether there is a distinction which results in the denial of equality before or under the law, or of equal protection or benefit of the law. The second is to determine whether this denial constitutes discrimination on the basis of an enumerated or analogous ground.

In Vriend v. Alberta, [1998] 1 S.C.R. 493, the most recent Supreme Court of Canada decision to interpret and apply section 15 of the Charter, Mr. Justice Cory who wrote for the majority of the Court reviewed some of the recent and sometimes divergent Supreme Court of Canada jurisprudence on section 15, and summarized the appropriate interpretation as follows (at page 539):

The essential requirements of all these cases will be satisfied by enquiring first, whether there is a distinction which results in the denial of equality before or under the law, or of equal protection or benefit of the law; and second, whether this denial constitutes discrimination on the basis of an enumerated or analogous ground.

The plaintiff argues that the 10-year residency requirement for eligibility for an old age security pension produces a distinction between two groups of seniors, those who are eligible for the pension and those who are not. He further argues that this distinction results in the denial of an equal benefit of the law and of equality before the law.

There appears to be some uncertainty in the jurisprudence as to whether the first step of a section 15 analysis requires an assessment as to whether the distinction drawn by the legislation is based on a personal characteristic or whether it is part of the second step of a section 15 analysis. In Egan v. Canada, [1995] 2 S.C.R. 513 the Court placed a focus on personal characteristics in its description of the first step of the analysis. Mr. Justice Cory, speaking for himself and Justices Iacobucci and McLachlin stated, at page 584:

The first step is to determine whether, due to a distinction created by the questioned law, a claimant's right to equality before the law, equality under the law, equal protection of the law or equal benefit of the law has been denied. During the first step, the inquiry should focus upon whether the challenged law has drawn a distinction between the claimant and others, based on personal characteristics. [Underlining added.]

However, in Miron v. Trudel, [1995] 2 S.C.R. 418, at page 485 (released concurrently with Egan), Madam Justice McLachlin speaking for four judges, suggested that the claimant must only show a distinction as compared to some other person and she left the analysis of whether personal characteristics were involved to the second stage of the analysis:

The analysis under s. 15(1) involves two steps. First, the claimant must show a denial of "equal protection" or "equal benefit" of the law, as compared with some other person. Second, the claimant must show that the denial constitutes discrimination. At this second stage, in order for discrimination to be made out, the claimant must show that the denial rests on one of the grounds enumerated in s. 15(1) or an analogous ground and that the unequal treatment is based on the stereotypical application of presumed group or personal characteristics. [Underlining added.]

I am persuaded that the nature of the distinction, including whether it involves a personal characteristic, is a matter to be considered at the second stage. I accept that the legislation draws a distinction that leads to a denial of an equal benefit of the law. I understood counsel for the defendant to accept this conclusion as well. I will consider first, then, whether the distinction created by the law is one based on an enumerated characteristic and second whether it is based on an analogous ground.

First it is necessary to recall that the enumerated grounds set out in section 15 are "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability". The distinction in issue in this case is based primarily on the length and timing of an individual's residence in Canada. Distinctions are not made between those who are Canadian citizens and those who are not. Distinctions are not made between natural born and naturalized citizens. Distinctions are not made between individuals based on their immigration status. The distinction in so far as it is based on residence within Canada cannot be classified as being based on an enumerated ground.

Nor does the expansion of the group who are entitled to benefits by reference to entitlement under the pension plans of countries with whom Canada has reciprocal agreements convert the distinction to one based on national origin. In the first place, the primary feature of the class is related to residence in Canada; the expansion by reference to entitlement under various plans of other countries is peripheral. More importantly, however, that expansion is not based on citizenship or national origin"it is based on entitlement under the plans that exist in those other countries, which may or may not be based on residence. Some countries, for example, New Zealand, Australia, Switzerland and the Netherlands do have pension schemes that like Canada's are based on age and residence. The reference to particular countries is for the purpose of identifying those countries that have been willing to sign a reciprocal agreement with Canada, not to identify the national origin of the individual concerned. The expanded category (via international agreements) enables those who have qualified under Canada's plan to move to those other countries without loss of benefits, and it allows individuals who come to Canada having contributed to the plans of those countries to retain benefits.

I turn then to whether the groups of persons who are not entitled to benefits can be said to be analogous to one or more of the groups specifically enumerated in subsection 15(1). There is considerable jurisprudence, that at least in so far as residence within a province is concerned, a class defined by residence outside the province is not an analogous ground to those enumerated in section 15. For example in Haig v. Canada; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, it was held that individuals who moved from Ontario to Quebec and therefore found themselves unable to vote in the 1992 referendum because the residency requirements for voting in Quebec were more stringent than those in the other provinces did not suffer discrimination contrary to section 15. The Quebec legislation required six months, residency in the province before a person was qualified to vote. I quote from the headnote, at page 999:

The new residents of a province do not constitute a disadvantaged group within the contemplation of s. 15(1). People moving to Quebec less than six months before a referendum date do not suffer from stereotyping, or social prejudice. Though its members were unable to vote in the Quebec referendum, the group is not one which has suffered historical disadvantage, or political prejudice. Nor does the group appear to be "discrete and insular".

Distinctions on the basis of residence or presence within a province have also been held not to infringe section 15 in R. v. Turpin, [1989] 1 S.C.R. 1296; Wong v. Canada, [1997] 1 F.C. 193 (T.D.), at page 197; affirmed [1997] F.C.J. No. 1797 (C.A.) (QL); leave to appeal denied [1998] 1 S.C.R. xvi; Clarken et al. v. Ontario Health Insurance Plan, (1998), 109 O.A.C. 363 (Ont. Div. Ct.), at page 373; McCarten et al. v. Prince Edward Island (1994), 117 Nfld. & P.E.I.R. 1 (C.A.), per Mitchell J.A., at pages 4-5; leave to appeal refused [1994] 2 S.C.R. viii (25 August 1994).

The decisions cited above relate to distinctions on the basis of province of residence. I recognize that they are not particularly persuasive given that there is more similarity between country of residence and nationality than between province of residence and nationality. One can freely change one's province of residence. Changing one's country of residence is not as easy since, in general, under international and domestic law, it is only the country of nationality that is required to accept a person as a resident. Changing country of residence, at least if the residence is to be long term, requires the consent of the receiving country. Thus, there is a closer connection between country of residence and country of national origin than is the case with province of residence. Several Federal Court cases have dealt with constitutional challenges on the basis of country of residence.

The decision in Peterson v. Canada (Minister of State, Grains and Oilseeds) (1995), 124 D.L.R. (4th) 96 (F.C.A.), dealt with an allegation that section 15 was infringed as a result of residency requirements. In that case provisions of the Western Grain Stabilization Act, S.C. 1974-75-76, c. 87, that established a subsidy program for western grain farmers but restricted eligibility to Canadian citizens and landed immigrants was in issue. Individuals who were resident in the United States but who farmed land in Saskatchewan challenged the constitutionality of the program. The Court held, quoting from the head note, that [at page 97]:

. . . s. 7(1) of the Act did not constitute discrimination against the appellants because the group to which they belong, that of temporary visitors who enter Canada from time to time to sell grain, was not a discrete and insular minority which had suffered from stereotyping and otherwise in Canadian society, and because residency was not an irrelevant personal characteristic when viewed in light of the purpose of the legislation.

. . .

The differential treatment accorded to the appellants by s. 7(1) of the Act does not amount to discrimination. The non-resident characteristic of the appellants' group is not analogous to the prohibitive criteria found in s. 15(1). Residency is not an immutable characteristic and is within the control of the individual.

Of more significance is the decision in Canada (Attorney General) v. Pattinson (1990), 123 N.R. 156 (F.C.A.). The issue was whether the respondent, Pattinson, should receive 22/40 or 27/40 of the full monthly pension to which those who meet the residency requirements under the Old Age Security Act are entitled. Ms. Pattinson had been absent from Canada for certain periods, on holidays in Europe, and working in Washington, D.C. While the main issue was what regulations applied, those in existence at an earlier period of time or those more recently promulgated, the respondent also argued that the residency requirements contravened section 15 of the Charter. The Federal Court of Appeal gave that argument very short shrift. I quote the relevant portion of the decision, at page 160:

. . . it was argued that the regulations contravened s. 15 of the Canadian Charter of Rights and Freedoms by discriminating against the respondent. Such a contention is, however, not available to the respondent since the decision of Supreme Court of Canada in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, at p. 180, per McIntyre, J. The distinctions made among the various applicants for pensions here are not based on grounds that are enumerated in s. 15 nor on grounds analogous thereto.

The plaintiff relies on Pearkes v. Canada (1993), 72 F.T.R. 90 (F.C.T.D.) and Lavoie v. Canada, [1995] 2 F.C. 623 (T.D.) as authority for the proposition that it offends section 15 to distinguish amongst seniors who are legally resident in Canada based on whether or not they have been present in Canada for 10 years. In Pearkes the plaintiff challenged the Social Sciences and Humanities Research Council's policy of refusing funding to permanent residents who wished to use the funding to study at institutions outside of Canada. Canadian citizens were permitted to so use the grant funds, but permanent residents were restricted in such use.¹ Mr. Justice Pinard found that the distinction between permanent residents and Canadian citizens was based exclusively on citizenship status, and that it discriminated against permanent residents who were otherwise meritorious candidates for a grant. He held that the policy was not justifiable under section 1.

In Lavoie the preferential practice of hiring Canadian citizens into the Public Service was challenged by several permanent residents. Mr. Justice Wetston held that the policy violated section 15, since it burdened or disadvantaged the plaintiffs on the basis of citizenship, a personal characteristic. He found, however, that the preferential hiring practice was justified under section 1. In both cases, the judges relied on the finding in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 that citizenship was an analogous ground to those enumerated in section 15.

Neither of these cases is particularly relevant to the plaintiff's appeal. In each case, and in Andrews, the distinction under consideration was one between Canadian citizens and permanent residents. Citizenship was found to be a personal characteristic that is at the core of an individual's identity. Many permanent residents of Canada, such as some of those in the previously mentioned cases, cannot acquire Canadian citizenship without renouncing the citizenship of their home country, and choose to remain permanent residents for this reason. In both cases mentioned above, the benefits sought had clear eligibility qualifications and criteria, that the plaintiffs met. They were denied the benefits on the basis of their citizenship status alone. In the case at bar, as noted, the legislation does not distinguish between citizens and permanent residents.

Madam Justice McLachlin in Miron, supra, at page 486 explained the function of the enumerated grounds listed in section 15. They "serve as a filter to separate trivial inequities from those worthy of constitutional protection". In order to justify constitutional protection, claimants must show that the unequal treatment to which they have been subjected is based on one of the grounds expressly mentioned in subsection 15(1) or on some other analogous ground. She held that the grounds reflect the purpose of the equality guarantee (at pages 486-487):

. . . to prevent the violation of human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstance.

In Miron Madam Justice McLachlin held that indicators of an analogous ground include whether the targeted group has suffered historical disadvantage, whether it is a discrete and insular minority, or whether the distinction in question was made on the basis of presumed group or personal characteristics. In Egan, supra, Mr. Justice Cory held that one of the prime characteristics of discrimination is that it involves a distinction based on personal characteristics of the individual or group. He later went on to articulate a broader basis for establishing whether a ground is analogous to those enumerated in section 15 (at pages 599-600):

The fundamental consideration underlying the analogous grounds analysis is whether the basis of distinction may serve to deny the essential human dignity of the Charter claimant. Since one of the aims of s. 15(1) is to prevent discrimination against groups which suffer from a social or political disadvantage it follows that it may be helpful to see if there is any indication that the group in question has suffered discrimination arising from stereotyping, historical disadvantage or vulnerability to political and social prejudice. [Underlining added.]

In Vriend, supra, the Court did not complete a detailed analogous grounds analysis. Instead it relied on the finding in Egan that sexual orientation was an analogous ground on the basis that it is a "deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs" and on the basis of the "historical social, political and economic disadvantage suffered by homosexuals" (Vriend , at page 546).

In the present case, the category of persons that do not qualify for benefits are not persons who can be said to have suffered historical disadvantage. Nor is the group one that has suffered from stereotyping and social prejudice. Not granting an old age pension until someone has lived in Canada for 10 years immediately preceding the application for benefits or in accordance with the other residency requirements of the legislation does not send a message that reinforces societal stereotypes. It is not akin to denying spousal benefits to gay and lesbian couples. In the latter case the refusal sends a message that gay and lesbian relationships are not legitimate and reinforces societal stereotypes about gay and lesbian people. The former distinction cannot be said to reinforce societal stereotypes, as there are no stereotypes particular and unique to this group. Nor does it send any particular negative message other than that the residency requirement applicable to all applicants has not been met. Persons over the age of 65 who have not lived in Canada for ten years or fulfilled the other alternate requirements of the legislation are not a discrete and insular minority, indeed they are a diffuse and disparate group. Individual members of the group may face discrimination in other circumstances based on their age or based on a particular national origin, but they do not face it for the specific reason that they have not lived in Canada for 10 years. Nor is it clear that length of residence in Canada is a personal characteristic, at least not in the circumstances that pertain in this case.

While the plaintiff asserts that applying for provincial social assistance affronts the dignity of those seniors who find it necessary to do so, I am not persuaded that this is the kind of denial of essential human dignity to which Mr. Justice Cory referred in Egan. The 10-year residency requirement together with the other requirements that define the class of persons that are denied benefits may be an arbitrary distinction, but it does not define a class that warrants constitutional protection. The distinction is not based on an enumerated or analogous ground and therefore does not offend section 15.

The group of individuals who are not entitled to benefits simply do not comprise a category analogous to those listed in section 15.

¹ Permanent residents could use the funding abroad but only if they had held at the time of application, a full-time faculty appointment for at least two years, and could produce evidence that they would be returning to a Canadian academic appointment at the end of the fellowship period.