Charter Litigation

 

Egan v. Canada

Jim Egan and John Nesbit were a gay couple who had lived together in a committed relationship since 1948. In 1986, when he turned 65, Egan began to collect old age security benefits. When Nesbit turned 60, he applied for a spousal allowance, which was generally available to spouses between age 60 and 65, provided the couple's income fell below a certain level.

Nesbit was denied a spousal allowance because he did not fit the opposite-sex definition of marriage in the Old Age Security Act. Egan and Nesbit commenced litigation, arguing that the opposite sex requirement violated their equality rights under the Canadian Charter of Rights and Freedoms.

The trial judge dismissed the case and the British Columbia Court of Appeal upheld that decision. Egan and Nesbit appealed to the Supreme Court of Canada.

In May 1995, the Supreme Court unanimously held that sexual orientation was an analogous ground of discrimination within the meaning of section 15 of the Charter. Therefore, discrimination on the basis of sexual orientation was prohibited under the Charter.

A majority of the Court (5 of the 9 judges) held that the opposite-sex definition of spouse discriminated on the basis of sexual orientation. Four of those five judges held that the discrimination could not be saved under section 1 of the Charter and would have granted the appeal.

However, one of the five judges who found that the definition was discriminatory also held that the discrimination could be justified as a reasonable limit under section 1 of the Charter. His decision on this issue meant that a majority of five judges considered the legislation to be constitutional. As a result the appeal was dismissed.

The Canadian Labour Congress intervened in support of the appellants and was represented by Steven Barrett and Vanessa Payne.

Egale Canada Inc. intervened in support of the appellants and was represented by Cynthia Petersen.

Click here to read the Court's decision