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SUBMISSION OF THE ARMED FORCES PENSIONERS' AND ANNUITANTS' ASSOCIATION OF CANADA TO THE CANADIAN HUMAN RIGHTS ACT REVIEW PANEL

 

Introduction

The Armed Forces Pensioners' and Annuitants' Association of Canada (AFP/AAC) was established in 1970 to promote and protect the rights and interests of Canadian Armed Forces retirees and their survivors. Its current name was adopted in 1987. At present, AFP/AAC has over 25,000 members across the country. The vast majority of members are currently in receipt of a superannuation or a survivor's allowance under the Canadian Forces Superannuation Act.

The organization's motto is "SERVIVIMUS PATRIAE NOSTRAE" or "We have Served Our Country," reflecting the enormous contributions and sacrifices of its members. The objectives of the AFP/AAC include monitoring legislation which Affects Canadian Armed Forces retirees and pressing for improvements to the Canadian Forces Superannuation Act. As part of the latter objective, one of its goals is also to press for the reinstatement of survivor benefits to annuitants who marry after reaching the age of sixty.

The AFP/AAC believes that changes to the Canadian Human Rights Act are long overdue and welcomes the opportunity to provide comments to the Canadian Human Rights Act Review Panel regarding issues that are of concern to the organization.

 

Exemption of Pre-1978 Statutory Pension Plans from the Act

Part of the Mandate of the Canadian Human Rights Act Review Panel is to consider whether exemptions from the substantive provisions of the Act are appropriate. Having regard to the purpose and objectives of the AFP/AAC, one important issue that causes it concern is the exemption set out in section 62(1) of the Canadian Human Rights Act. It states that:

(1) Limitation - This Part and Parts I and II do not apply to or in respect of any superannuation or pension fund or plan established by an Act of Parliament enacted before March 1, 1978.

The effect of this provision is that the substantive human rights protections set out in Act do not apply to statutory pension and superannuation plans. This includes many of the pension and superannuation plans established for federal public servants. It is the submission of the AFP/AAC that section 62(1) is inconsistent with the spirit and intent of the Canadian Human Right Act and ought to be abolished immediately.

It is not clear to the AFP/AAC why this provision was originally included in the Act. There is no obvious reason why statutory pension plans should be exempted from human rights laws that are applicable to private pension plans. If the intent of Parliament was that statutory pension plans should be allowed time to make any necessary amendments so that they comply with the Act, it has now been over twenty years since the Act came into effect. It is time for all pension plans to comply with the Act.

The impact of section 61(1) of the Act has clearly been detrimental to members of the AFP/AAC. The superannuation plan established pursuant to the Canadian Forces Superannuation Act is among those plans which is exempted from the Human Rights Act. Section 31(1) of the Canadian Forces Superannuation Act states that:

31. (1) Subject to section 25.1 but notwithstanding any other provision of this Act, the survivor of a contributor is not entitled to an annual allowance in respect of the contributor under this Part if at the time the contributor married the survivor or began to cohabit with the survivor in a relationship of a conjugal nature, the contributor had attained the age of sixty years unless, after that time, the contributor became or continued to be a contributor.

In other words, surviving spouses cannot collect survivor benefits if the deceased member married after retirement and was over age sixty at the time of the marriage. It is the view of the AFP/AAC that this provision is fundamentally discriminatory on the basis of age, sex and marital status. It arbitrarily prevents surviving spouses, primarily women, from collecting survivor benefits simply because the deceased pensioner married after retirement and was over age sixty at the time of the wedding. This is the result regardless of the length of the marriage. There are literally hundreds of surviving spouses of members of the Armed Forces who have faced this situation or who will face it in the future if changes are not made. In many of the cases, couples have been married for decades before the death of the pensioner. It is completely inappropriate that the families of those who have contributed so much to their country ought to experience financial hardship as a result of a discriminatory and arbitrary provision. It is even more inappropriate that they should then have no recourse through the Human Rights Act because of a provision such as section 62(1).

In the view of the AFP/AAC, the issue of the appropriateness of the exemption set out in section 62(1) of the Act should be considered in the context of the broader aims and purposes of the Human Rights Act. Section 2 of the Act states that:

The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age sex, sexual orientation, martial status, family status, disability, or conviction for an offence for which a pardon has been granted.

This suggests the fundamental importance of human rights in Canadian society. Indeed, it has been stressed repeatedly in the jurisprudence that a human rights claimant's rights under the Act are quasi-constitutional. (See the Supreme Court's comments on this point in Canada (Attorney-General) v. Mossop, [1993] 1 S.C.R. 554).

These fundamental values are at odds with the exemption set out in section 62(1) of the Act. In effect, the current legislation establishes a two-tiered system. Private sector pension plans that breach the Act are called to account for their actions whereas pension plans established by the government prior to 1978 may effectively opt out of the Act. It is completely inappropriate that the government that created the Act is not required to abide by its provisions in administering all of its pension plans. The clear solution is to immediately eliminate s. 62(1) of the Human Rights Act to allow human rights complaints about discriminatory pension plans, regardless of when and how they were created, to proceed.

Conclusion

The human rights process has become part of the very fabric of Canadian society and the Canadian Human Rights Act contains many of the principles and values that men and women have sought to defend through their military service. It is therefore all the more crucial that the members of the AFP/AAC have the right to use the Act with respect to their pensions. It is respectfully submitted that it is unfair to arbitrarily exempt certain pensions from human rights scrutiny. The clear remedy is the immediate elimination of s. 62(1) of the Act. This change should be retroactive to allow complaints to be pursued by those who have already suffered damages because of discriminatory provisions of statutory pension plans.