Top court rejects ‘mirror
comparator groups’
approach for s. 15
CRISTIN SCHMITZ OTTAWA
vants) and over the age of 60 (for
Canadian Forces members).
In a 9-0 judgment, Chief Justice Beverley McLachlin and Justice Rosalie Abella held that the
challenged benefit scheme does
not violate the Charter’s s. 15( 1)
guarantee of equality by paying
lower benefits to the plaintiffs than
to the survivors of plan members
who die earlier than ages 60 or 65.
Of course the reduced benefit
rules are age-based, Justices Abella
and McLachlin acknowledged in
their joint reasons.
But they concluded that the
rules do not discriminate under
s. 15( 1) because the rules
are—when looked at in the context of the overall package of federal benefits provided to survivors
and the latter’s evolving needs over
their lifetimes—effective in meeting the claimants’ actual needs and
in achieving important goals such
as ensuring that retiree benefits are
meaningful.
“It is in the nature of a pension
benefits scheme that it must bal-
ance different claimants’ interests,
and cannot be perfectly tailored to
each individual’s personal circum-
stances,” Justices Abella and
McLachlin reasoned. “The reality
is that such schemes of necessity
must make distinctions on general
criteria, including age.
“The court’s focus on
the purpose of the
benefit scheme in this
case (as opposed to
its effect) may be
applied in detrimental
ways in future cases.
court to breathe more life into the
Charter’s equality guarantee
described Withler as a “mixed
blessing.”
“In terms of equality jurispru-
dence, the decision is positive in
some respects but worrying in
others,” commented Toronto’s Joa-
nna Birenbaum, litigation director
for the intervener Women’s Legal
Education and Action Fund
(LEAF).
She said that “the court’s focus
on the purpose of the benefit
scheme in this case (as opposed to
its effect) may be applied in detri-
mental ways in future cases.”
On the other hand, Birenbaum
called it “encouraging” that With-
ler clearly holds that s. 15 claimants
no longer need to establish that
they are worse off than a “mirror
comparator” group.
“LEAF’s submissions…included
the strong argument that the comparator group analysis in equality
law does not promote substantive
equality, and is simply formal
equality,” Birenbaum told The
Lawyers Weekly.
“Unfortunately, the judgment
also raises a number of concerns
which LEAF will study. These
concerns include the court’s reliance on the ‘correspondence’
See Withler Page 26
Saskatchewan’s Maintenance
Enforcement Office says it expects to
collect more than $35 million in the
fiscal year which ends this month.
When the office opened 25 years
ago, about 85 per cent of custodial
parents in Saskatchewan were not
receiving their child support regularly.
This year the office expects to
collect more than 92 per cent of the
money owed to custodial
parents —the second-highest
collection rate in Canada.
Reforms in 2009 empowered the
maintenance enforcement office to
suspend a parent’s driver’s licence
where he or she is at least three
months in arrears.
A new computer system, slated
for 2012, will give clients web-based
access to payment and enforcement
information. Employers will also be
able to submit payers’ garnished
wages electronically.
‘Discounts’ dead and gone
actual needs and circumstances of
the claimant group is not required.
Allocation of resources and par-
ticular policy goals that the legisla-
ture may be seeking to achieve may
also be considered.”
At press time, Crown counsel
could not be reached.
But lawyers who would like the
CONTENTS
NEWS
Leave granted in class action for
MAKE LEGAL aid an essential
public service, says a B.C.
commission report ....................... 1
SUPREME COURT gets
opportunity to clarify GAAR........ 13
secondary market securities claim
HARPER APPOINTED a large
number of Crowns, and few
women, to the Bench .................. 1
Bankruptcy & Insolvency
HOW TO handle limitation periods
in bankruptcy.............................. 14
LUIS MILLAN MONTREAL
APPEALING A trustee’s proof of
claim disallowance..................... 15
THE SCC revises its approach to
equality rights again.....................2
BUSINESS & CAREERS
A CLASS action is granted leave
for a secondary market securities
claim ............................................2
THE AUTOMATED office ........... 21
Offenders convicted of murdering
more than one person now face the
possibility of a much longer stint
behind bars.
On March 8, the Senate gave its
stamp of approval to Bill C-48 which
empowers judges to impose
consecutive parole ineligibility periods
for those convicted of more than one
first- or second-degree murder.
Previously multiple murderers served
their parole ineligibility periods
concurrently. They were eligible to
apply for parole after one period
ranging from 10 to 25 years,
depending on their sentences.
Judges will not be required to
impose consecutive parole ineligibility
periods. But courts will have to give
reasons for their decision on that
issue. Judges must consider the
character of the offender, the nature
and circumstances of the offence,
and any jury recommendation.
Provincial offences reform
SIMON FRASER University
contemplates a law school .......... 3
‘OLDER LAWYER’ keeps up with
new trends in technology............. 4
OPINION
JEFFREY MILLER ........................ 5
MICHELE ANDERSON................. 5
In a striking ruling that follows
on the heels of a handful of decisions that seemingly lean towards
a permissive approach in securities class actions for misrepresentations in public disclosure, an
Ontario Superior Court recently
certified a $165-million class-action against Arctic Glacier
Income Fund by investors who
suffered losses after a U.S. antitrust investigation.
In the latest of the first generation of cases that examined relatively recent investor protection
legislation, Justice Wolfram Tausendfreund of the Ontario Superior
Court of Justice granted leave
under the Ontario Securities Act
(Act) for the plaintiffs to bring an
action against the Income Fund for
misrepresentation in the secondary
market, certified common law misrepresentation claims alongside
statutory claims and held that the
Ontario-based representative
plaintiffs had standing to advance
statutory claims on behalf of a
global class, which includes members not resident in Canada.
The suit against Arctic Glacier
Income Fund alleges that misrepresentations were made by the
Income Fund in a series of public
disclosures, including prospectuses, by affirming that it and its
subsidiaries were “good corporate
citizens” at the same time that its
U.S.-based subsidiary was engaged
in anti-competitive behavior. The
See Arctic Page 8
FOCUS
Tax Law
TAX COURT delivers smackdown
in leveraged donation program..... 9
RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
DEPARTMENTS
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS
REGULATING THE money-services
industry in Quebec ..................... 10
TOP COURT denies Crown GST/
HST super priority ...................... 11
WHEN DIRECTORS’ liability
never ends ................................. 11
Careers ................. 24
Classified Ads ............ 19
Lawddities............... 10
Legal Briefs...............2
Letter to the Editor . . . . . . . . . 8
Names in the News......... 4
Weekly Digest............ 17
PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D.
DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B.
JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B.
BOBBY ATH WAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.
B YRON THOM, B.A.SC. (ENG. SCI.), LL.B.
BRANT LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B.
GARY M. TRAVIS, B.SC. (GEOL.), LL.B.
MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B.
MICHAEL YUN, B.SC. (BIOCHEM), J.D.
TRADE MARK AGENT MAR TA TANDORI CHENG
2 BLOOR ST. EAST, SUITE 1800
TORONTO, ONTARIO M4W 3J5
ESTABLISHED 1887
TELEPHONE: (416) 961-5000
FAX: (416) 961-5081
E-MAIL: riches@patents-toronto.com
Ontario’s Law Commission invites
feedback from the legal profession by
April 29 on its draft proposals for a
major overhaul of the 30-year-old
Provincial Offences Act (POA).
Unveiled in March, the
commission’s interim report on POA
reform recommends moving all
parking offences out of court to
reserve judicial resources for more
serious matters. Municipalities would
instead collect monetary penalties for
parking infractions that could be
disputed before a municipal hearings
officer.
The commission also recommends:
simplifying the POA and creating
processes proportionate to the
seriousness of the offence; creating
clear sentencing principles to help
courts make appropriate and
consistent sentences that will
promote compliance with regulatory
standards; and making simple, plain-
language information guides available.
