Court of Appeal of Ontario
Hislop v. Canada (Attorney General)
Date: 2005-02-24
(No. C41224)
Paul B. Vickery, for appellant
R. Douglas Elliott, for respondent.
Daniel Guttman, for intervenor.
[1] Feldman J.A. (endorsement): — The parties appeared before me in chambers to settle the order on this appeal. After receiving the written submissions of counsel and hearing oral submission, the order of the court shall be in the form annexed hereto as Appendix "A".
Appendix "A"
Order
This Appeal by the Attorney General of Canada from the Judgment of the Honourable Justice Ellen M. Macdonald dated December 19, 2003 ("the Trial Judgment") was heard on June 10th and 11th, 2004, at Osgoode Hall, 130 Queen Street West, Toronto, with judgment reserved to this day.
On Reading the pleadings and proceedings herein, the Trial Judgment, appeal books, the compendiums, the transcripts, the exhibit books, the facta of the parties and the intervenor, and the supplementary written submissions of the parties, and on hearing the submissions for the parties and the intervenor, and for the written reasons for judgment released on November 26, 2004,
- This Court Orders That this appeal is allowed in part and that the Trial Judgment be varied as follows:
(a) paragraphs 3, 4 and 5 of the Trial Judgment are hereby set aside and in their place the following shall be substituted:
This Court Orders and Adjudges that class members that are survivors' estates have no rights under s. 15(1) of the Charter and are not exempt from the application of s. 60(2) of the Canadian Pension Plan, R.S.C. 1985, c. C-8 ("CPP");
This Court Orders and Adjudges that s. 72(1) of the CPP does not infringe s. 15(1) of the Charter and that the class members are not exempt from s. 72(1);
This Court Orders and Adjudges that class members shall be eligible to receive prospective survivor's pensions, and survivor's pensions in arrears as determined by the trial judge in subsequent proceedings, subject to the date determined for commencement of pension for each class member, s. 28 of the Class Proceedings Act, 1992, S.O. 1992, c. 6, and sections 60(2) and 72(1) of the CPP;
This Court Orders and Adjudges that the class members shall be entitled to interest on the amounts awarded in this Judgment for arrears of pension from the earliest date from which pension arrears are owing to the class members as determined in subsequent proceedings to be held as directed by the Court, but in no case shall a class member be entitled to interest from before February 1, 1992, in accordance with the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50;
(b) paragraphs 6 and 7 of the Trial Judgment are to be renumbered paragraphs 7 and 8, respectively; and
(c) the answer to the portion of common question 14 in respect of Charter relief set out in Schedule "A" of the Trial Judgment, which was appealed, is amendad as follows:
- Q: If sections 60(2) and 72(1) of the CPP would otherwise be applicable, should the Court grant relief pursuant to s. 24 of the Charter or s. 52 of the Constitution Act, 1982 or on equitable grounds to relieve against the application of that limitation under the circumstances of this case?
A: These provisions do not violate s. 15(1) of the Charter; therefore a constitutional remedy in the form of a constitutional exemption cannot be ordered.
This Court Declines to address the issue of equitable relief raised in common question 14 or common questions 15 and 17, set out in Schedule "A" to the Trial Judgment, all of which were included in the notice of appeal, as the parties did not argue these issues before this court.
This Court Orders That the appeal is otherwise dismissed.
This Court Orders That the appellant pay to the respondents their costs of the appeal on a partial indemnity basis, such costs to exclude the costs of the motion to partially lift the stay of the Trial Judgment and any costs relating specifically to the intervention of the Attorney General of Ontario. Unless the parties agree on the amount of the respondents' costs within thirty days, such costs are to be assessed.
Appeal allowed in part.