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Hodge seeks Canada Pension Plan benefits from the death of her former common law spouse. They had lived together for many years, but had broken up for approximately five months prior to his death. Separated married couples would receive benefits if one spouse died, but divorced couples would not. Hodge was successful in the lower courts which the government appealed.


  1. How do you select the relevant comparator group?


Appeal allowed.


Binnie, writing for a unanimous court, allows the appeal. He finds that the lower court erred in law when they accepted Hodge's statement that the correct comparator group was separated married spouses. The Supreme Court rejects this as they state that separated married spouses are still "spouses" because their legal relationship still exists, whereas non-cohabitating common law spouses are no longer "spouses" in the eyes of the law as they have no legal relations. She was not in any form of relationship with the deceased at the time of his death, which is the relevant time according to the legislation. Therefore she was not denied the benefits because she was a common law spouse rather than a married spouse, but because she was not a spouse at all.

Hodge claimed that separated common law spouses should remain "spouses" if they continue to be economically dependent on the other person after separation. However Binnie rejected this, and said that the legislatures defined cohabitation and not economic dependency as the measure for common law spouses.

In the result, as Hodge is not a member of the relevant comparator group (divorced legal spouses) she cannot establish discrimination under s.15 on the grounds of marital status.


  • If one cannot establish that the relevant comparator group would receive the benefits that you have not received, then they cannot bring a successful s.15 discrimination claim.
  • The courts can change the comparator group brought forward by the claimant if they do not think that it is the correct one.
  • If you cannot prove the relevant comparator group receives the benefits, then you cannot succeed.