Withler v. Canada (SCC) (Heard March 17, 2010)

On March 17, 2010, LEAF intervened in the Supreme Court of Canada case of Withler v. Canada. The case is significant since it is the first appeal heard by the Supreme Court of Canada in over two years in which the only basis for the challenge is a violation of s.15 equality rights under the Charter. LEAF intervened to advance the equality rights analysis to ensure that the legal test fully accounts for the lived realities of marginalized groups. Specifically, LEAF’s factum focused on the role of comparison in the discrimination analysis. LEAF also intervened to emphasize the gendered dimension of the age-based discrimination challenge.

Withler involves a federal government supplementary death benefit (“SDB”) paid to spouses of deceased civil servants and armed forces members. The claimants allege that the legislation discriminates based on age because the death benefit payout decreases by 10 per cent each year for ten years once the participant lives beyond the age 60 or 65, at which point the participant’s spouse is entitled only to a minimum paid –up benefit. The claimant class members are spouses of deceased civil servants and armed forces members. Noting that the overwhelming majority of surviving spouses are women, LEAF argued that the Supreme Court must consider the specific impact of the reduced benefit on elderly women. LEAF emphasized the financial vulnerability of elderly women, arising from the effects of systemic labour market discrimination, their caregiving roles and the limited participation of women in the workforce historically. LEAF argued that the exclusion of predominantly elderly single women from a scheme which is intended to offer transitional funding upon the death of a spouse is discriminatory; the exclusion exacerbates their already existing economic and social inequality.

The Supreme Court of Canada reserved judgment.