Globe and Mail

Ottawa saves as judge bucks activist trend

Justice Reporter
The Globe and Mail
Friday, November 5, 1999

A Federal Court of Canada judge has saved Ottawa $2.4-billion by deferring to the will of Parliament, something that judges have been persistently accused of not doing.

Federal Court of Canada Judge Marshall Rothstein concluded easily last week that the Old Age Security Act discriminates unfairly against separated spouses. But he refused to extend benefits to them, which would have imposed his view over that of Parliament.

"Public funds are not unlimited, and judicial activism would tend to make governments reluctant to create new programs because of the uncertainty of the potential liability involved," Judge Rothstein wrote in his judgment.

The plaintiff, Mary T. Collins, was denied spousal benefits when she turned 60 because she was separated from her former husband, Henry Collins. She is now 73, and started legal action in 1987.

Under an OAS provision created in 1975, couples whose combined income falls below a certain threshold are eligible for spousal pension benefits from the age of 60 until the younger spouse's own pensions begin at 65.

Ms. Collins argued that by excluding estranged spouses, the provision violates the constitutional guarantee to equal treatment.

David Stratas, a specialist in constitutional law, said in an interview that the ruling will comfort the judiciary's harshest critics.

"This is probably one of the most complete explanations of why judges may wish to defer in cases like this," Mr. Stratas said. "The judge is saying there are some fields where judicial feet should not tread."

Judge Rothstein said the provision not only discriminates against a subgroup, but it impugns their "human dignity" -- a key component in reaching a finding of unconstitutionality.

However, Judge Rothstein said the decision to give benefits exclusively to spouses who remain married or live in common law was intentionally made after much parliamentary debate.

He said the provision's primary aim was to alleviate the financial burden on women who spent most of their lives out of the workforce before being abruptly cut adrift by their husbands. The government also recognized that a great many women who had been widowed by the age of 60 had been financially dependent on their spouses for most or all of their lives.

Judge Rothstein cited a number of difficult questions parliamentarians weighed in deciding what limits to place on the provision. These included the option of cutting other social programs in order to extend benefits to divorced spouses; increasing taxes to fund it; or burdening future generations with an increased deficit.

He said that during parliamentary debate on the provision, the Minister of National Health and Welfare stated unequivocally that the purpose of the legislation was not to extend "universal pension" to everyone under 65.

Judge Rothstein said that given the large number of competing interests, a judge is not in a good position to adjudicate between them.

"I think these conflicting interests make it obvious that the policy choices involved are of a type that Parliament is in a better position than the courts to make," he said.

The spousal allowance pension program costs about $400-million annually. But federal figures introduced in the case suggest that extending it to all spouses between 60-64 years of age would add $2.4-billion to its cost.

While the ruling is not the first to turn down a Charter claim that would have cost the government money, Mr. Stratas said it is especially noteworthy. "I expect this case will end up in the Supreme Court of Canada," Mr. Stratas said. "It is an excellent case for these issues to be given an airing."

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