In coming to its decision, the court made some critical remarks about the Supreme Court s reasoning in Egan - reasoning which had been relied on by the lower court in this case. Now, however, the Court of Appeal held, this uncertainty had been resolved by the Supreme Court s recent decision in Vriend v. Alberta . It is the objective of the limitation itself which must be shown to be pressing and substantial. Therefore, the government had to show that the exclusion of same sex couples from the benefits of registered pension plans itself had a pressing and substantial objective. The government argued that the original intention of the opposite sex definition was to recognize the vulnerable financial position of many women in heterosexual relationships.
Survivor benefits are available to both male and female spouses.
There is no reason to deprive a gay or lesbian employee of this same choice, both as to beneficiary and as to the relationship. Having found that the objective of the restriction was not pressing or substantial, the court went on to reject the government s argument that it should be permitted to address equality issues incrementally. Waiting for attitudes to change can be a glacial process. The court concluded by noting that there is less to fear from acknowledging conjugal diversity than from tolerating exclusionary prejudice. Instead, the Court of Appeal clearly parted ways with the Supreme Court in Egan in the way it determined whether the equality infringement had a pressing and substantial objective.