CN withholding pension from gay widower over outdated definition of spouse
Plan didn't include same-sex couples until 1998, CN says review is underway
Ken Haire was devastated when his partner of 33 years, Gerry Schwarz, died in 2012. He was even more distraught when he learned he wouldn't see a dollar of the survivor benefits built into Schwarz's pension because CN Rail's plan did not recognize same-sex relationships at the time of Schwarz's retirement.
Haire has spent parts of the last nine years fighting to get CN's pension and benefits department to overturn its decision. Now 71 years old, he's taken that fight public.
"He would be devastated if he knew what was going on now," Haire said of his late partner. "He was a company man. He loved CN Rail."
Schwarz worked for CN in Toronto for more than 30 years. He retired in 1991, and the couple later moved to Harbour Grace, N.L., to be closer to Haire's family.
They built a life there, with five Pekingese show dogs and a home overlooking the water, decorated with paintings and antiques Schwarz had brought from his home country of Germany.
We realize that some former practices and decisions made in good faith in the past need to be re-examined in light of our engagement toward diversity and inclusion- CN statement
He died from heart failure on Jan. 2, 2012, at the age of 76. Schwarz had plans in place in the event he died early. It largely revolved around his CN pension.
"He felt comfortable that if anything happened to him, I would be able to continue on with a reasonably comfortable lifestyle," Haire said. "And it didn't happen that way."
Company admits policy falls short on inclusion, diversity
When Haire got Schwarz's death certificate, he reached out to CN. The company sent condolences on the loss of his common law spouse, and said it would do everything in its power to make sure his pension continued to be paid out.
But on Jan. 31, 2012, Haire got a very different letter from CN's pension and benefits department. It informed him that the definition of spouse at the time of Schwarz's retirement from CN was a "person of the opposite sex," in a conjugal relationship for more than one year. Even though the terms had been updated in 1998 to include LGBT relationships, the pension plan had not made those changes retroactive.
Therefore, Haire was not entitled to anything.
"I suddenly went from being Gerry's common law spouse, to just being a roommate," Haire said. "I was hurt. I was more insulted by the fact that … after all those years and all the people he had worked with, that they still didn't acknowledge the fact that Gerry and I were a couple. We were a couple in every sense of the word. It really did hurt."
WATCH | CN says former policies may have to be re-examined:
Despite not budging on Haire's repeated requests throughout the years, CN told CBC News on Saturday that it is now reviewing how its policies have affected workers who retired before 1998.
"We realize that some former practices and decisions made in good faith in the past need to be re-examined in light of our engagement toward diversity and inclusion," a CN spokesperson said in a statement.
The original decision forced Haire's hand in heartbreaking financial decisions. He sold the house they'd lived in together, and had to sell most of Schwarz's antiques and paintings. Hardest of all, Haire had to give up their dogs when he moved into an apartment.
"It would have broke his heart," said Haire, stopping for a moment to catch the tears rolling down his cheeks.
What does the law say?
While he gave up the fight at times over the years, Haire has now dug in for one last kick at the can. He's hired a lawyer and plans to challenge the decision in court.
He has a legitimate shot, according to one of the country's top lawyers in LGBT rights.
"I don't really think that CN has much of a defence, quite frankly," said Douglas Elliott, a partner with the Toronto law firm Cambridge LLP.
Elliott argued one of the most prominent LGBT rights cases in the country, when he successfully unlocked Canada Pension Plan benefits for surviving spouses in same-sex relationships. The Supreme Court of Canada ordered the federal government to make the funds available retroactive to 1985, when the Canadian Charter of Rights and Freedoms went into effect.
He believes the precedent from that case would be a behemoth for CN to overcome if it should choose to fight this in court.
Elliott also said he understands the turmoil Haire is going through right now.
"It's a terrible economic burden, but also a terrible psychological burden, to be told by someone that your relationship doesn't count, that your relationship was second-rate and that they're going to try and erase that relationship or devalue it. Especially after that man devoted his life to CN Rail, it's really reprehensible."
Elliott called CN's policy "bigoted," and said it's frustrating to still be fighting these situations in 2021.
If CN chooses to reverse course and pay out the money, Haire said he'd accept it. But he won't act grateful.
"It would be nice to get the pension and it would be nice to keep it going until I pass away. But there's absolutely [nothing] they could do to compensate me for the loss of my home, for the loss of everything Gerry and I worked for, or for the loss of our pets," he said.
"They've made my life hell and it's just not right."
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