Bauman et al. v. Nova Scotia (Attorney General), (2000) 185 N.S.R.(2d) 225 (SC)

• Judge: Robertson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 25, 2000
• Jurisdiction: Nova Scotia
• Citations: (2000), 185 N.S.R.(2d) 225 (SC)

Bauman v. N.S. (A.G.) (2000), 185 N.S.R.(2d) 225 (SC);

 575 A.P.R. 225

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. JL.003

Grace Elizabeth (Betty) Bauman et al. (plaintiffs) v. The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia (defendant) and Workers' Compensation Board of Nova Scotia (intervenor)

(S.H. No. 158646)

Indexed As: Bauman et al. v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

Robertson, J.

April 25, 2000.

Summary:

When the 62 plaintiffs remarried at various times between 1948 and 1984, they lost their right to collect survivors benefits under the Workers' Compensation Act. The Act was amended. Widows who had remarried on or after April 17, 1985, the date s. 15 of the Charter came into effect, had their benefits reinstated. However, those who, like the plaintiffs, had remarried before April 17, 1985, only had their benefits reinstated effective January 1, 1999. The plaintiffs applied for a declaration that the relevant provisions of the Act were unconstitutional and violated s. 15 of the Charter and for an order requiring the Workers' Compensation Board to reinstate their benefits to April 17, 1985.

The Nova Scotia Supreme Court allowed the application.

Civil Rights - Topic 936

Discrimination - Government programs - Workers' compensation - When the 62 plaintiffs remarried at various times between 1948 and 1984, they lost their right to collect survivors benefits under the Workers' Compensation Act - The Act was amended - Widows who had remarried on or after April 17, 1985, the date s. 15 of the Charter came into effect, had their benefits reinstated - However, those who, like the plaintiffs, had remarried before April 17, 1985, only had their benefits reinstated effective January 1, 1999 - The plaintiffs applied for a declaration that the relevant provisions of the Act were uncon­stitutional and for an order requiring the Workers' Compensation Board to reinstate their benefits to April 17, 1985 - The Nova Scotia Supreme Court allowed the applica­tion - The offending provisions violated s. 15 of the Charter and were not saved by s. 1.

Civil Rights - Topic 5667.1

Equality and protection of the law - Par­ticular cases - Workers' compensation - [See Civil Rights - Topic 936 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - General - Retroactivity - When the 62 plaintiffs remarried at vari­ous times between 1948 and 1984, they lost their right to collect survivors benefits under the Workers' Compensation Act - The Act was amended - Widows who had remarried on or after April 17, 1985, the date s. 15 of the Charter came into effect, had their benefits reinstated - However, those who, like the plaintiffs, had remarried before April 17, 1985, only had their benefits reinstated effective January 1, 1999 - The plaintiffs applied for a decla­ration that the relevant provisions of the Act were unconstitutional and for an order requiring the Workers' Compensation Board to reinstate their benefits to April 17, 1985 - The Nova Scotia Supreme Court held that there was ongoing discrimination and granting the application would not give the Charter retroactive effect - See paragraphs 28 to 45.

Workers' Compensation - Topic 5545

Compensation - Persons entitled - General - Widows - [See Civil Rights - Topic 936 ].

Cases Noticed:

Grigg v. British Columbia (1996), 138 D.L.R.(4th) 548 (S.C.), folld. [para. 26].

R. v. James, Kirsten, Rosenthal and Dzagic, [1988] 1 S.C.R. 669; 85 N.R. 1; 41 O.A.C. 303, refd to. [para. 29].

Reference Re Sections 32 and 34 of the Worker's Compensation Act (Nfld.), [1989] 1 S.C.R. 922; 96 N.R. 227; 76 Nfld. & P.E.I.R. 181; 235 A.P.R. 181; 56 D.L.R.(4th) 765, refd to. [para. 29].

R. v. Lucas; R. v. Neely (1986), 14 O.A.C. 124; 27 C.C.C.(3d) 229 (C.A.), refd to. [para. 29].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 29].

Edwards Books and Art Ltd. v. R. - see R. v. Videoflicks Ltd. et al.

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693; 13 R.F.L.(4th) 1, refd to. [para. 52].

Fancy v. Shephard (1997), 164 N.S.R.(2d) 274; 491 A.P.R. 274 (S.C.), refd to. [para. 53].

Sutherland v. Canada, [1994] 3 F.C. 662; 80 F.T.R. 202 (T.D.), dist. [para. 55].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 65].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 12 R.F.L.(4th) 201; 124 D.L.R.(4th) 609, refd to. [para. 65].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 66].

Statutes Noticed:

Workmen's Compensation Act, R.S.N.S. 1967, c. 343, sect. 76 [para. 8].

Workers' Compensation Act, R.S.N.S. 1989, c. 508, sect. 61(1) [para. 11].

Workers' Compensation Act, An Act to Amend Chapter 10 of the Acts of 1994-95, S.N.S. 1999, c. 1, sect. 60(A)(7) [para. 13].

Authors and Works Noticed:

Hansard (Nova Scotia) - see Nova Scotia, Hansard, Legislative Assembly.

Nova Scotia, Hansard, Legislative Assem­bly Address (December 1998), p. 4733 [para. 21].

Nova Scotia, Hansard, Legislative Assem­bly Address (April 13, 1999), p. 5756 [para. 22].

Counsel:

Scott Sterns, Darlene Jamieson and Deanna Borden, for the plaintiffs;

Catherine Lunn, for the Attorney General of Nova Scotia;

David Farrar and Christa Helstrom, for the Workers' Compensation Board of Nova Scotia.

This application was heard at Halifax, Nova Scotia, on February 28 and 29, 2000, by Robertson, J., of the Nova Scotia Supreme Court, who delivered the following decision on April 25, 2000.