Skip to Main Content

Rosenberg v. Canada

April 23, 1998

The Ontario Court of Appeal has held that the opposite-sex definition of spouse in the Income Tax Act violates the Canadian Charter of Rights and Freedoms.

In 1992, the Canadian Union of Public Employees amended the definition of “spouse” in its employees’ pension plan to include same-sex spouses. The amendment meant that same-sex spouses would be entitled to survivor benefits. However, Revenue Canada refused to register the amendment because it did not comply with the opposite-sex definition of spouse in the Income Tax Act. Plans not registered with Revenue Canada do not receive the significant tax benefits available to registered plans.

Two of CUPE’s employees challenged the opposite-sex definition of “spouse” in the Income Tax Act, arguing that it violated their equality rights under the Canadian Charter of Rights and Freedoms.

The government conceded, and the trial judge held, that the opposite-sex definition of spouse in the Act violated the applicants’ equality rights. The government sought to uphold the definition under s. 1 of the Charter and the trial judge agreed. She held that she was bound by Egan v. Canada, in which a majority of the Supreme Court of Canada held that the opposite sex definition of spouse in the Old Age Security Act was justified under s. 1 of the Charter. As a result, the application was dismissed. The employees appealed.

On April 23, 1998, the Ontario Court of Appeal overturned the trial judge’s decision. The Court held that, in her s. 1 analysis, the trial judge had mistakenly focused on the objective of the employer-sponsored pension plan system under the Income Tax Act, rather than focusing on the objective of the infringing limitation – i.e. the exclusion from benefits of cohabiting gays and lesbians of contributing employees.

The government was unable to articulate a substantial and pressing objective for excluding the same-sex partners of employees who contributed to the plan. Therefore, the Court held, the government failed to satisfy the first part of the s. 1 test. Further, the Court held, even if the protection of heterosexual survivors of conjugal relationships was a pressing and substantial objective, there was no rational connection between that objective and denying the same benefit to partners in same-sex relationships.

The Court declared that the definition of spouse in the Income Tax Act as it applied to the registration of pension plans was unconstitutional and ordered that the violation be remedied by including same sex spouses into the offending section.

Click here to read the Court of Appeal’s decision.

Peter Engelmann represented the appellants. Egale Canada Inc. and the Ontario Public Service Employees Union intervened in support of the appellants and were represented by Cynthia Petersen and Fiona Campbell, respectively.


Peter Engelmann, Fiona Campbell

Practice Areas

Appeals & Judicial Review, Constitutional Law