Horner et al. v. Saskatchewan et al., 2013 SKQB 340

• Judge: Schwann, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 19, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 340;(2013), 429 Sask.R. 280 (QB)

Horner v. Sask. (2013), 429 Sask.R. 280 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. OC.024

Patricia Horner (plaintiff) v. Her Majesty the Queen in Right of Saskatchewan and the Workers' Compensation Board (defendants)

(2007 Q.B.G. No. 1133; 2013 SKQB 340)

Indexed As: Horner et al. v. Saskatchewan et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Schwann, J.

September 19, 2013.

Summary:

The plaintiffs were surviving dependent spouses of employees fatally injured at work. Each had remarried prior to April 17, 1985, thus losing their entitlement to their Workers' Compensation Survivors' Pensions. Legislation enacted in September 1985 continued payment of the pensions, regardless of marriage, but only for spouses who remarried after April 17, 1985. Subsequent legislation aimed at compensating surviving spouses whose benefits had been terminated by remarriage before April 17, 1985, provided a lump sum payment and required the execution of a release. Each of the plaintiffs signed a release and accepted a payment. Another surviving spouse, Ravndahl, did not. She commenced an action challenging the constitutional validity of the legislation. That matter was before the Supreme Court of Canada. The plaintiffs applied to certify their action as a class action.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2008), 318 Sask.R. 96, adjourned the application sine die to be argued further after the Ravndahl action had been decided.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2009), 336 Sask.R. 12, dismissed the application. The plaintiff, Horner, amended her statement of claim by striking all references to the other plaintiffs, making it her action alone.

The Saskatchewan Court of Queen's Bench dismissed the action.

Civil Rights - Topic 8309

Canadian Charter of Rights and Freedoms - General - Waiver of rights - Horner's husband was killed in a workplace accident in 1970 - Her survivor's benefits under the Workers' Compensation Act ended in 1980 when she remarried - In September 1985, the Workers' Compensation Amendment Act continued payment of survivor's benefits, regardless of marriage, but only for spouses who remarried after April 17, 1985, when the Charter came into force - In 1999, the Special Payment (Dependent Spouses) Act provided a single lump sum payment of $80,000 to surviving widows, such as Horner, who had remarried before April 17, 1985, and who signed a release of all claims and a waiver of future rights of action against Saskatchewan and the Workers' Compensation Board (the defendants) - Horner signed a release and received a payment - In 2007, Horner commenced an action, challenging the constitutionality of the legislation and seeking reinstatement of her survivor's benefits retroactively to April 17, 1985 - The Saskatchewan Court of Queen's Bench, in dismissing the action, rejected Horner's argument that her Charter rights could not be waived - Horner had released the defendants from past Charter infringements and had also waived her ability to sue in the future based on the discontinuation of her survivor's benefits in 1980 - A release for past infringements was not unlawful - In covenanting not to sue, Horner had not waived a prospective Charter right per se, but had purported to waive her right to litigate the termination of her benefits - The court found "considerable merit" in the defendants' argument that Horner should not be permitted to disavow herself of a conscious decision to waive possible pre-existing Charter violations where the law recognized the right of an accused person facing jeopardy to waive existing Charter protections (e.g., right to counsel) - Further, there were policy considerations - Removing the possibility of a binding release would fetter the government's ability to settle Charter-based claims - See paragraphs 24 to 49.

Civil Rights - Topic 8355

Canadian Charter of Rights and Freedoms - Application - Exceptions - Notwithstanding provision - Horner's husband was killed in a workplace accident in 1970 - Her survivor's benefits under the Workers' Compensation Act ended in 1980 when she remarried - In September 1985, the Workers' Compensation Amendment Act continued payment of survivor's benefits, regardless of marriage, but only for spouses who remarried after April 17, 1985, when the Charter came into force - In 1999, the Special Payment (Dependent Spouses) Act provided a single lump sum payment of $80,000 to surviving widows, such as Horner, who had remarried before April 17, 1985, and who signed a release of all claims and a waiver of future rights of action against Saskatchewan and the Workers' Compensation Board - Horner signed a release and received a payment - In 2007, Horner commenced an action, challenging the constitutionality of the legislation and seeking reinstatement of her survivor's benefits retroactively to April 17, 1985 - The Saskatchewan Court of Queen's Bench, in dismissing the action, rejected Horner's argument that where a government sought to legislate a scheme to abrogate Charter rights, it had to invoke the "notwithstanding" clause in s. 33(1) of the Charter - There was no evidence that Saskatchewan had enacted the legislation knowing that it was constitutionally flawed - Further, the legislation was remedial in that it was designed to address a perceived Charter issue - Finally, there was no authority for the proposition that a government had to invoke the notwithstanding clause in every situation where Charter-protected rights were involved - See paragraphs 50 to 54.

Civil Rights - Topic 8380.24

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Limitation of actions - Horner's husband was killed in a workplace accident in 1970 - Her survivor's benefits under the Workers' Compensation Act ended in 1980 when she remarried - In September 1985, the Workers' Compensation Amendment Act continued payment of survivor's benefits, regardless of marriage, but only for spouses who remarried after April 17, 1985, when the Charter came into force - In 1999, the Special Payment (Dependent Spouses) Act provided a single lump sum payment of $80,000 to surviving widows, such as Horner, who had remarried before April 17, 1985, and who signed a release of all claims and a waiver of future rights of action against Saskatchewan and the Workers' Compensation Board - Horner signed a release and received a payment - In April 2012, Horner commenced an action, challenging the constitutionality of the legislation and seeking reinstatement of her survivor's benefits retroactively to April 17, 1985 - The Saskatchewan Court of Queen's Bench dismissed the action on the basis that the claim was barred by the release signed by Horner - However, the court also indicated that any remedies of a personal nature that were sought by Horner were statute-barred - The cause of action arose on April 17, 1985, when s. 15 of the Charter came into effect - Her claim was filed more than 20 years later - See paragraphs 69 to 85.

Limitation of Actions - Topic 7582

Actions against the Crown - Applicability of limitation period - Charter remedies - [See Civil Rights - Topic 8380.24 ].

Practice - Topic 9852.1

Settlements - Effect of - General - Horner's husband was killed in a workplace accident in 1970 - Her survivor's benefits under the Workers' Compensation Act ended in 1980 when she remarried - In September 1985, the Workers' Compensation Amendment Act continued payment of survivor's benefits, regardless of marriage, but only for spouses who remarried after April 17, 1985, when the Charter came into force - In 1999, the Special Payment (Dependent Spouses) Act provided a single lump sum payment of $80,000 to surviving widows, such as Horner, who had remarried before April 17, 1985, and who signed a release of all claims and a waiver of future rights of action against Saskatchewan and the Workers' Compensation Board - Horner signed a release and received a payment - In 2007, Horner commenced an action, challenging the constitutionality of the legislation and seeking reinstatement of her survivor's benefits retroactively to April 17, 1985 - The Saskatchewan Court of Queen's Bench dismissed the action - The release was a valid waiver of Horner's right to bring this action - The court rejected Horner's argument that the release was not valid because her consent was not freely given and she had no power to negotiate - There was nothing before the court to undercut the voluntariness of Horner's decision to sign - Her lack of input into the release's wording was irrelevant - The terms of the waiver were explicit, clear and unequivocal - Horner accepted the settlement funds freely and voluntarily - Horner's claim was estopped or barred by the release and had to be dismissed on that ground alone - See paragraphs 55 to 68.

Releases - Topic 4003

Operation - General - Persons bound by release - [See Practice - Topic 9852.1 ].

Waiver - Topic 4

General principles - Requirements of valid waiver - [See Practice - Topic 9852.1 ].

Cases Noticed:

Ravndahl v. Saskatchewan et al. (2007), 299 Sask.R. 162; 408 W.A.C. 162; 2007 SKCA 66, affd. [2009] 1 S.C.R. 181; 383 N.R. 247; 320 Sask.R. 305; 444 W.A.C. 305; 2009 SCC 7, refd to. [para. 9].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, dist. [para. 27].

Insurance Corp. of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 32].

Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, refd to. [para. 32].

Newfoundland Association of Public Employees v. Newfoundland et al., [1996] 2 S.C.R. 3; 196 N.R. 212; 140 Nfld. & P.E.I.R. 63; 438 A.P.R. 63, refd to. [para. 32].

Social Services Administration Board (Party Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 32].

Chow v. Mobil Oil Canada, [1999] 12 W.W.R. 373; 248 A.R. 372; 1999 ABQB 1026, refd to. [para. 34].

Ermineskin Cree Nation v. Foureyes (2005), 382 A.R. 215; 2005 ABQB 522, refd to. [para. 36].

Barton v. Rouge Valley Health System, 2010 HRTO 2126, refd to. [para. 36].

Perricone v. Fabco Plastics Wholesale (Ontario) Ltd., 2010 HRTO 1655, refd to. [para. 36].

Adbusters Media Foundation v. Canadian Broadcasting Corp. et al. (2009), 269 B.C.A.C. 95; 453 W.A.C. 95; 92 B.C.L.R.(4th) 9; 2009 BCCA 148, refd to. [para. 41].

R. v. Glaister (J.), [2004] O.T.C. 34 (Sup. Ct.), refd to. [para. 41].

R. v. Korponey, [1982] 1 S.C.R. 41; 44 N.R. 103; 132 D.L.R.(3d) 354, refd to. [para. 43].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 44].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 44].

R. v. Richard (R.), [1996] 3 S.C.R. 525; 203 N.R. 8; 182 N.B.R.(2d) 161; 463 A.P.R. 161, refd to. [para. 44].

R. v. Tran (Q.D.), [1994] 2 S.C.R. 951; 170 N.R. 81; 133 N.S.R.(2d) 81; 380 A.P.R. 81, refd to. [para. 44].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 44].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233, refd to. [para. 44].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 44].

Alves et al. v. MyTravel Canada Holidays Inc. et al. (2011), 377 Sask.R. 68; 528 W.A.C. 68; 2011 SKCA 116, refd to. [para. 47].

Roussy v. Red Seal Vacations Inc. - see Alves et al. v. MyTravel Canada Holidays Inc. et al.

Marble v. Saskatchewan et al. (2004), 236 Sask.R. 14; 2003 SKQB 282, refd to. [para. 47].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, dist. [para. 59].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007) (Looseleaf), vol. 2, p. 39-2 [para. 51].

Roach, Kent, Constitutional Remedies in Canada (2nd Ed. 2013) (Looseleaf), p. 14-1 [para. 83].

Counsel:

Gordon Kuski, Q.C., and Philip Gallet, for the plaintiff;

Leonard Andrychuk, Q.C., and Khurrum Awan, for the defendant, Workers' Compensation Board;

Alan Jacobson, for the Crown.

This action was heard by Schwann, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on September 19, 2013.