Egan V. Canada - Background

Background

James Egan and John Norris Nesbit, the plaintiffs, were a gay couple who had been in a conjugal relationship since 1948. Upon reaching age 65 in 1986, Egan became eligible to receive old age security and a guaranteed income supplement from the government under the Old Age Security Act.

The Old Age Security Act provides that a spouse of the pensioner may receive a spousal allowance should their combined income fall below a certain amount. When Nesbit reached 65, he applied to the Department of National Health and Welfare for a spousal allowance. However, he was refused on the basis that spouse, defined in section 2 of Old Age Security Act, did not include a member of the same sex.

Joseph J. Arvay, Q.C., represented the plaintiffs Egan and Nesbit, who delivered a motion for a declaration of unconstitutionality to the Federal Court of Canada (Trial Division). They alleged that the definition of "spouse" under the Old Age Security Act constituted an infringement of their right to the equal protection and equal benefit of the law, entrenched in section 15 of the Canadian Charter of Rights and Freedoms, and that such an infringement was discriminatory on the basis of sexual orientation. Furthermore, they alleged that the section 15 violation could not be saved under Section 1. Nesbit and Egan petitioned the Court to remedy the alleged Charter violation by reading the definition of spouse so as to include same-sex couples.