This case concerned the test to be used in assessing equality rights claims, and the benefits available to senior women upon the death of their spouses. 

LEAF intervened before the Supreme Court of Canada. 


The Public Service Superannuation Act and the Canadian Forces Superannuation Act provided federal civil servants and members of the Canadian Forces, and their families, with work-related benefits. These benefits included a “supplementary death benefit” (SDB), a lump sum payment made to a plan member’s designated beneficiary when the member dies. The amount decreased by 10 per cent each year for ten years once the member lived past 60 or 65.  

Hazel Ruth Withler and Joan Helen Fitzsimonds received SDB payments, but these were reducedbecause of the age of their husbands at the time of their deaths. They brought a class action, arguing that this reduction discriminated based on age. The trial judge dismissed the case. The British Columbia Court of Appeal upheld that decision. Ms. Withler and Ms. Fitzsimonds appealed to the Supreme Court of Canada. 


LEAF’s arguments targeted the equality rights analysis and ensuring that the test under s. 15(1) of the Charter fully accounted for the lived realities of marginalized groups. Specifically, LEAF’s argumentsfocused on the role of comparison in the discrimination analysis. The Court needed to undertake a contextualized approach to comparison, carefully examining the effects of the challenged legislation. 

LEAF also emphasized the gendered dimension of the age-based discrimination challenge. The Court needed to consider the specific impact of the reduced benefit on elderly women. This was particularly true given the financial vulnerability of senior women, arising from the effects of systemic labour market discrimination, women’s caregiving roles, and the historically limited participation of women in the workforce. 


The Supreme Court dismissed the class actions. However, in its decision, the Court responded to LEAF’s arguments about the role of comparison in equality rights claims.  

LEAF is grateful to Daphne Gilbert, Joanna Radbord and Joanna Birenbaum, counsel in this case, as well as Kelly Doctor, Ottawa agent for LEAF.

Download the factum here.  

Read the Supreme Court of Canada’s decision here

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].