Pensions and Benefits Part 2: Key Case-Law Developments in Canada

December 18, 2018 | Kim Ozubko

As discussed at our last A.M. Pension Webinar on December 11, 2018, there have been a number of significant legislative and case-law developments in the area of pensions and benefits law in 2018. In Part I of a two-part blog post, we discussed some of the key legislative developments in Ontario and the federal jurisdiction. In this post, we highlight some of the key case-law developments in Canada.

Challenges under the Charter of Rights and Freedoms

Lubianesky v. Gazdag (Alberta)

In Lubianesky v. Gazdag, Ms. Lubianesky sought a declaration that the provisions in Alberta’s Employment Pension Plans Act (“EPPA”) that allowed only married spouses, not common-law spouses, to agree to divide benefits on relationship breakdown violated the equality provisions of the Canadian Charter of Rights and Freedoms (“Charter”) on the grounds of marital status.

The Alberta Court of Queen’s Bench agreed with Ms. Lubianesky and found that denying common-law spouses the ability to divide their pension benefits, a right that is granted to married spouses, was discriminatory and to the disadvantage of unmarried spouses. As a result, the Court read into the EPPA language that extends the right to divide pension benefits on relationship breakdown to common-law spouses.

In May 2018, Alberta Treasury Board and Finance released EPPA Update 18-03, Eligibility for Pension Credit Splitting on Relationship Breakdown Extended to Common-Law Spouses (the “EPPA Update”). The EPPA Update makes it clear that common-law pension partners (spouses) in Alberta now have the same rights to divide pension benefits as legally married pension partners on marriage breakdown.

Talos v. Grand Erie District School Board (Ontario)

In May 2018, the Ontario Human Rights Tribunal (the “Tribunal”) issued an interim decision in Talos v. Grand Erie District School Board. In his application, Mr. Talos alleged that he had experienced discrimination on the basis of age, in violation of the Charter, because the School Board had terminated his health, dental and life insurance benefits at age 65 even though he continued to work.

The Tribunal found that Mr. Talos’ rights under the equality provision of the Charter were infringed by application of section 25(2.1) of Ontario’s Human Rights Code and the Regulations to the Employment Standards Act, 2000, as these provisions create a distinction between employees who are over and under the age of 65.  The Tribunal further found that the School Board had not discharged its onus to justify the infringement under section 1 of the Charter.  As a result, the Tribunal found that the legislative provisions were not available to the School Board as a defence and Mr. Talos’ application could proceed on its merits.

The Tribunal expressly noted that its decision does not address long-term disability insurance, pension plans and superannuation funds.

Benefit Plan Coverage of Medical Marijuana

Canadian Elevator Industry Welfare Trust Fund v. Skinner (Nova Scotia)

In April 2018, the Nova Scotia Court of Appeal overturned the earlier decision of a Human Rights Board of Inquiry (the “Board) in which the Board found that the benefit plan administrator’s decision to deny coverage for a plan member’s medical marijuana was discrimination on the basis of disability in violation of Nova Scotia’s Human Right Act (“NS Act”).

According to the Court:

  • The plan did not cover medical marijuana because it was not approved by Health Canada.
  • All such plans necessarily have limited benefits for those with a disability.
  • It could not be automatically discriminatory for the plan administrator to impose reasonable limits on reimbursable benefits.
  • Mr. Skinner had access to all of the medications available to any other eligible plan member and experienced an adverse impact because those medications were not effective for him personally, not because he fell within a protected group under the NS Act.

In overturning the Board’s decision, the Court noted that to rule otherwise would mean that every under-inclusive benefit plan is prima face discriminatory, requiring human rights boards to become “arbiters of private benefit plans.”

For further information, please contact Kim Ozubko at or (416-597-4338), or subscribe to our A.M. Pension Blog and webinar series to stay informed on the latest developments.


This blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of this blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.