Canada v Hislop: How Far Back Are We Willing to Go?

Anytime differential treatment of a group is recognized as morally wrong or a violation of equality rights there arises a difficult issue. In trying to determine how best to compensate persons who have been affected by such treatment, how far back should the courts go to calculate the appropriate compensation or remedy?

This is precisely the issue that is tackled in Canada (Attorney General) v Hislop, 2007 SCC 10 [Hislop], by the Supreme Court of Canada (“SCC”). In this case, the context is the extension of survivor benefits to same sex spouses in the wake of the decision and the resulting legislation that followed from M v H, [1999] 2 SCR 3. The very same issue was dealt with, although framed differently, in the Newfoundland (Treasury Board) v NAPE, [2004] 3 SCR 381 [NAPE]. In both of these cases we see the SCC wrestling with concerns arising from valid s. 15 Charter claims and another competing public interest.

The competing public interest in both Hislop and NAPE is the effect on the public of significant expenditure from the public purse. While the nuances of legal reasoning and analysis can at times make certain empirical realities less significant, I for one have often thought that the most obvious unwritten principle not mentioned in our famous Reference re Secession of Quebec, [1998] 2 SCR 217, is that of economics. In both cases the SCC was faced with deciding an issue that would have significant impact on the public purse and in both cases the resulting decisions were ones in which the SCC chose not to spend public monies.

In Hislop, the legislation that amended laws in the wake of M v H already stipulated how far back claims made by the affected parties could go. Anytime the SCC alters entitlement to economic benefits it will have to grapple with the issue of retroactivity. While Hislop discusses “clear breaks with the past” and various factors to consider in granting any retroactive remedy on a case by case basis, the realist in me finds it difficult to ignore the money issue that seems to underlie cases such as this one.