Bauman et al. v. Nova Scotia (Attorney General), 2001 NSCA 51

• Judge: Glube, C.J.N.S., Bateman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 09, 2001
• Jurisdiction: Nova Scotia
• Citations: 2001 NSCA 51;(2001), 192 N.S.R.(2d) 236 (CA)

Bauman v. N.S. (A.G.) (2001), 192 N.S.R.(2d) 236 (CA);

 599 A.P.R. 236

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. AP.004

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

(CA 165426; 2001 NSCA 51)

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

Nova Scotia Court of Appeal

Glube, C.J.N.S., Bateman and Oland, JJ.A.

March 29, 2001.

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 The last termi­nation provision was repealed, but pensions were not reinstated. Subsequently, the Act was amended to provide that widows who had remarried on or after April 17, 1985, the date that s. 15 of the Charter came into effect, had their pensions reinstated; how­ever, those who, like the plaintiffs, had remarried before April 17, 1985, only had their pensions reinstated effective January 1, 1999. The plaintiffs sought a declaration that the relevant provisions of the Act violated s. 15 of the Charter and an order requiring the Workers' Compensation Board to reinstate their pensions to April 17, 1985.

The Nova Scotia Supreme Court, in a decision reported at 185 N.S.R.(2d) 225; 575 A.P.R. 225, granted the relief sought. The Province appealed.

The Nova Scotia Court of Appeal allowed the appeal.

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their right to collect survivors benefits under the Workers' Compensation Act - The last ter­mination provision was repealed, but pen­sions were not reinstated - Subse­quently, the Act was amended to provide that widows who had remarried on or after April 17, 1985, the date that s. 15 of the Charter came into effect, had their pen­sions reinstated from that date; how­ever, those who, like the plaintiffs, had re­married before April 17, 1985, only had their pensions reinstated effective January 1, 1999 - The plaintiffs sought a declara­tion that the relevant provisions violated s. 15(1) of the Charter and an order requiring the Workers' Compensation Board to rein­state their pensions to April 17, 1985 - The chambers judge granted the relief - The Province appealed - The Nova Scotia Court of Appeal allowed the appeal - The differential treatment was not based on an analogous ground and, even if it had been, it was not discriminatory in the sense that it conflicted with the fundamental purpose of s. 15(1) of the Charter - It did not de­mean the plaintiffs' dignity - See para­graphs 69 to 79.

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 - Retrospectivity - 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 last termination provision was re­pealed, but pensions were not reinstated -Subsequently, the Act was amended to pro­vide that widows who had remarried on or after April 17, 1985, the date that s. 15 of the Charter came into effect, had their pensions reinstated from that date; how­ever, those who, like the plaintiffs, had remarried before April 17, 1985, only had their pensions reinstated effective January 1, 1999 - The plaintiffs sought a declara­tion that the termination, repeal and rein­statement provisions were unconstitutional and an order requiring the Workers' Com­pensation Board to reinstate their pensions to April 17, 1985 - The Nova Scotia Court of Appeal held that to grant the requested relief would result in an impermissible retrospective application of the Charter - The termination provisions were lawful when applied to the plaintiffs - Their repeal could not revive the pensions - To find that the reinstatement provision had to apply to widows who remarried before s. 15 of the Charter took effect would attach new consequences to an event that oc­curred before s. 15 was enacted - See paragraphs 28 to 53 and 81 to 82.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - General - Retrospectivity - 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 last termination provision was re­pealed, but pensions were not reinstated -Subsequently, the Act was amended to pro­vide that widows who had remarried on or after April 17, 1985, the date that s. 15 of the Charter came into effect, had their pensions reinstated from that date; how­ever, those who, like the plaintiffs, had remarried before April 17, 1985, only had their pensions reinstated effective January 1, 1999 - The plaintiffs sought a declara­tion that the termination, repeal and rein­statement provisions were unconstitutional and an order requiring the Workers' Com­pensation Board to reinstate their pensions to April 17, 1985 - The chambers judge granted the relief - The Nova Scotia Court of Appeal held that the decision resulted in an impermissible retrospective application of the Charter - The chambers judge erred by intermingling the equality and retro­spectivity analyses - She referred to both the purpose and effect of the impugned provisions in concluding that the claimants had a right to have their pensions restored - The purpose and effect of the impugned legislation was relevant to the s. 15(1) analysis, but not the question of retro­spectivity - The distinction between pre- Charter and post-Charter events was central to the retrospectivity analysis and was not an "artificial distinction" - See paragraphs 83 to 90.

Civil Rights - Topic 8663

Canadian Charter of Rights and Freedoms - Equality rights - Purpose of s. 15 - [See Civil Rights - Topic 936 ].

Civil Rights - Topic 8664

Canadian Charter of Rights and Freedoms - Equality rights - Application of - [See second Civil Rights - Topic 8304 ].

Civil Rights - Topic 8666

Canadian Charter of Rights and Freedoms - Equality rights - Meaning of "discrimi­nation" - [See Civil Rights - Topic 936 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights - Analogous categories - 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 last termination provision was re­pealed, but pensions were not reinstated -Subsequently, the Act was amended to pro­vide that widows who had remarried on or after April 17, 1985, the date that s. 15 of the Charter came into effect, had their pensions reinstated from that date; how­ever, those who, like the plaintiffs, had remarried before April 17, 1985, only had their pensions reinstated effective January 1, 1999 - The plaintiffs sought a declara­tion that the relevant provisions violated s. 15(1) of the Charter and an order requiring the Workers' Compensation Board to rein­state their pensions to April 17, 1985 - The chambers judge granted the relief - The Province appealed - The Nova Scotia Court of Appeal held that the chambers judged erred in finding that there was ongoing discrimination based upon the analogous ground of marital status - The proper comparator group was widows who remarried after the Charter, not widows who did not remarry - The distinction here was temporal (based upon the date of re­marriage), which was not an enumerated or analogous ground - See paragraphs 59 to 63 and 65 to 68.

Workers' Compensation - Topic 5545

Compensation - Persons entitled - General - Widows - [See Civil Rights - Topic 936 and first Civil Rights - Topic 8304 ].

Workers' Compensation - Topic 7006

Practice - Appeals - Review of board's decision by an appeal board or by the court - Standard of review - 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 last termination provision was repealed, but pensions were not reinstated - Subse­quently, the Act was amended to provide that widows who had remarried on or after April 17, 1985, the date that s. 15 of the Charter came into effect, had their pen­sions reinstated; however, those who, like the plaintiffs, had remarried before April 17, 1985, only had their pensions rein­stated effective January 1, 1999 - The plaintiffs sought a declaration that pro­visions of the Act were unconstitutional and an order requiring the Workers' Com­pensation Board to reinstate their pensions to April 17, 1985 - A chambers judge granted the relief - The Province appealed - The Nova Scotia Court of Appeal held that the issues of retrospectivity and the equality analysis involved questions of law and the standard of review was one of correctness - See paragraph 21.

Cases Noticed:

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 3].

Pasiechnyk v. Workers' Compensation Board (Sask.) - see Pasiechnyk et al. v. Procrane Inc. et al.

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 24].

Benner v. Canada (Secretary of State), [1994] 1 F.C.R. 250; 155 N.R. 321 (F.C.A.), refd to. [para. 26].

R. v. Antoine (1983), 41 O.R.(2d) 607; 5 C.C.C.(3d) 97 (C.A.), refd to. [para. 29].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81; 66 C.R.(3d) 193; 45 C.C.C.(3d) 204, refd to. [para. 41].

Milne v. Canada et al., [1987] 2 S.C.R. 512; 81 N.R. 36; 25 O.A.C. 100, refd to. [para. 50].

Boudreau et al. v. New Brunswick et al. (2000), 227 N.B.R.(2d) 201; 583 A.P.R. 201; 186 D.L.R.(4th) 570 (T.D.), refd to. [para. 53].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 55].

Workers' Compensation Board (N.S.) v. Martin et al. (2000), 188 N.S.R.(2d) 330; 587 A.P.R. 330; 192 D.L.R.(4th) 611 (C.A.), refd to. [para. 58].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329, refd to. [para. 62].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 65].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8; 69 C.R.(3d) 97; 39 C.R.R. 306, refd to. [para. 66].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 66].

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201, refd to. [para. 79].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Grigg v. British Columbia (1996), 138 D.L.R.(4th) 548 (B.C.S.C.), not folld. [para. 91].

Workers' Compensation Board (N.S.) v. O'Quinn et al., [1996] N.S.H.R.B.I.D. No. 4, revd. (1997), 157 N.S.R.(2d) 282; 462 A.P.R. 282 (C.A.), refd to. [para. 93].

Stinson Estate v. British Columbia et al. (1999), 133 B.C.A.C. 15; 217 W.A.C. 15 (C.A.), refd to. [para. 102].

Statutes Noticed:

Workmen's Compensation Act, R.S.N.S. 1967, c. 343, sect. 76(1) [para. 5].

Workers' Compensation Act, R.S.N.S. 1989, c. 508, sect. 61 [para. 6].

Workers' Compensation Act, S.N.S. 1994-95, c. 10, sect. 60(A) [para. 11].

Workers' Compensation Act, An Act to Amend Chapter 508 of the Revised Stat­utes, 1989, S.N.S. 1992, c. 35, sect. 6 [para. 15].

Workers' Compensation Act, An Act to Amend Chapter 10 of the Acts of 1994-95, S.N.S. 1999, c. 1, sect. 7 [para. 11].

Authors and Works Noticed:

Black, William, Charter Rights - Appli­cation to Pre-Enactment Events (1982), U.B.C.L. Rev. 59, p. 63 [para. 27].

Driedger, Elmer A., Statutes: Retroactive Retrospective Reflections (1978), 56 Can. Bar Rev. 264, pp. 268, 269 [para. 25].

Counsel:

Catherine J. Lunn, for the appellant;

C. Scott Sterns, Darlene A. Jamieson and Deanna M. Borden, for the respondents, Grace Bauman et al.;

David Farrar, Janet E. Curry and Christa M. Hellstrom, for the respondent Board.

This appeal was heard on February 9, 2001, by Glube, C.J.N.S., Bateman and Oland, JJ.A., of the Nova Scotia Court of Appeal. Bateman, J.A., delivered the follow­ing decision for the Court of Appeal on March 29, 2001.