Not so simple after all: a comment on Ravndahl v. Saskatchewan.

• Author: Pothier, Dianne
• Position: Canada

Ravndahl became entitled to a survivor's pension under workers' compensation legislation upon the death of her husband in 1975, and disentitled upon remarriage in 1984. In 2000 she filed a statement of claim alleging the disentitlement constituted a section 15 Charter breach. The Saskatchewan government brought a pretrial motion claiming the action was barred because of a six-year statute of limitations.

The Supreme Court of Canada assumed without deciding that the Charter applied. The author contends the Court should have affirmatively concluded that the Charter applies, on the basis that the claim is founded on the claimant's on-going status as a survivor, not on the 1984 remarriage as a discrete pre-Charter event.

The Court concluded that, as a one-time cause of action arising on April 17, 1985, the statute of limitations barred any in personam remedy (section 24 of the Charter). However, the Court concluded that the statute of limitations did not bar in rem remedies against the statute pursuant to section 52 of the Constitution Act, 1982. The author questions the premise that a statute of limitations is properly applied in a constitutional claim against a statute. Even assuming it can be, the author contends that this case should be analysed as a rolling claim, recurring each month of non-payment of pension. The author also raises questions about the relationship between section 24 and section 52, indicating confusion and uncertainty as to whether retroactive relief pursuant to section 52 is possible where section 24 remedies are statute barred.

Au deces de son conjoint, en 1975, madame Ravndahl a ete admise, en vertu de la legislation sur les accidents du travail, a recevoir la rente du conjoint survivant; par la suite cependant, son remariage survenu en 1984 l'a rendue inadmissible a la recevoir. En 2000, elle a depose une plainte dans laquelle elle soutenait que sa nonadmissibilite au benefice des prestations constituait tree violation de l'article 15 de la Charte. Le gouvernement de la Saskatchewan a alors depose une motion prealable au proces soutenant que son action etait prescrite en vertu d'une loi sur la prescription de six ans.

La Cour supreme du Canada a acquiesce sans se prononcer sur la question de l'application de la Charte en l'espece. L'auteur soutient que la Cour aurait du conclure que la Charte s'appliquait la demande soumise, au motif qu'elle se fondait sur le statut permanent de la demanderesse en qualite de survivante et non as sur la base du remariage 1984 en rant qu'evenement ponctuel anterieur a la Charte.

Selon la Cour, la loi sur la prescription, en tant que cause d'action ponctuelle survenue le 17 avril 1985, empechait toute forme de reparation personnelle (article 24 de la Charte). La Cour a toutefois statue que cette meme loi n'empechait pas d'intenter un recours in rein a l'encontre de la loi conformement a l'article 52 de la Loi constitutionnelle de 1982. L'auteur remet en question la premisse selon laquelle une loi sur la prescription peut s'appliquer dans le cadre d'une affaire de nature constitutionnelle intentee a l'encontre d'une loi. Quand bien meme ce serait le cas, l'auteur soutient qu'il faudrait plutot analyser cette cause en tant que demande recurrente dans la mesure ou elle est presentee chaque mois, lors de chaque non paiement de la pension. L'auteur souleve en outre des questions au sujet des liens entre l'article 24 et l'artide 52, en soutenant qu'il existe une confusion et une incertitude quant au caractere retroactif du recours en vertu de l'artide 52 lorsque les reparations visees l'article 24 sont frappees de prescription.

Table of Contents I. INTRODUCTION II. DOES THE CHARTER APPLY AT ALL? III. To WHAT EXTENT, IF AT ALL, ARE CONSTITUTIONAL CLAIMS COVERED BY STATUTORY LIMITATION PERIODS? A. When Does the Limitation Clock Start? B. What is the Relationship Between Subsection 24(1) of the Charter and Section 52 of the Constitution Act, 1982 in Benefits Cases IV. CONCLUSION I. INTRODUCTION

It is a longstanding adage that there is no right without a remedy. (1) A perhaps less obvious corollary is that there cannot be a thorough and proper analysis of a remedy without a full understanding of the underlying right. The Supreme Court of Canada's recent decision in Ravndahl v. Saskatchewan (2) illustrates both of these propositions. The identified legal issue concerned the application of a statutory limitation period to a Charter (3) claim. But beneath the surface, many other legal issues lurk. The fact that the case arose from a pre-trial motion contributes to the absence of resolution of important constitutional questions.

Ravndahl's statement of claim was filed on March 31, 2000. The Supreme Court of Canada's decision to dismiss only part of the action, leaving the rest to proceed to trial, was issued on January 29, 2009. Yet, after almost nine years of preliminary skirmishes, there is much that is unclear about how the trial (assuming it proceeds) is supposed to unfold.

Although the legal analysis is complicated, the basic facts of the case are not complex. On November 17, 1975, the plaintiff's husband died from work-related circumstances, entitling her to a survivor's pension under Saskatchewan's workers' compensation legislation. On October 20, 1984, the plaintiff remarried. Pursuant to the then in-force provisions of the statute, the plaintiff's survivor's pension was terminated, but with a lump-sum payment equivalent to two years of pension benefits. Because section 15 of the Charter was not yet in force, (4) there was no basis for a constitutional challenge. Various amendments to the survivor's pension provisions of the workers' compensation scheme were subsequently implemented, but never provided full coverage for those survivors who remarried prior to April 17, 1985, the date on which section 15 of the Charter came into force. The first amendment, effective September l, 1985, stopped the survivor's pension from terminating upon remarriage, but only for remarriages on or after the date of the amendment. (5) Eventually, this amendment was retroactively applied to remarriages on or after April 17, 1985. (6) For remarriages prior to the coming into force of section 15 of the Charter, a 1999 amendment provided for a one-time lump-sum payment of $80,000. (7) There was a two-year window to apply for the $80,000, but payment was conditional on the applicant signing a release of all other claims, which Ravndahl was not prepared to do. As noted above, Ravndahl's statement of claim was not filed until March 31, 2000. Neither the judgment of first instance, (8) nor those of the Saskatchewan Court of Appeal (9) or the Supreme Court of Canada, provided any explanation of why the claim was not filed earlier. Nor did any of the judgments reveal whether the man who became Ravndahl's husband in 1984 is still her husband or even still alive. This reflects the premise that the claim was based not on the plaintiff's current marital status, but on her on-going status as a survivor of a worker covered by workers' compensation.

Ravndahl's statement of claim sought the following relief:

1. A declaration pursuant to section 52 of the Constitution Act 1982 that section 98.1(5) of The Workers' Compensation Amendment Act 1985 is unconstitutional and of no force or effect;

2. A declaration that section 98.1(5) of The Workers' Compensation Act, 1979

3. W-17.1 is unconstitutional and of no force and effect; c) A declaration that The Special Payment (Dependent Spouses) Act is unconstitutional and of no force and effect;

4. An Order reinstating the Plaintiff's spousal pension;

5. Damages;

6. Interest in accordance with The Pre-Judgment Interest Act;

7. Costs;

8. Such further and other relief as the Plaintiff may advise and this Honourable Court may allow. (10)

The government of Saskatchewan and the Workers' Compensation Board brought a pre-trial motion for a determination on a point of law to have the action dismissed on the basis of the six-year statute of limitations applicable where no other specific limitation period applied. Justice Pritchard, the judge at first instance, dismissed the entire claim as statute-barred and treated the claims for relief pursuant to subsection 24(1) of the Charter. (11) The majority of the Saskatchewan Court of Appeal (Gerwing J.A., Lane J.A. concurring) upheld the dismissal of paragraphs (d) to (h), but concluded that the trial could proceed on paragraphs (a) to (c) as claims under subsection 52(1) of the Constitution Act, 1982. (12) Smith J.A., dissenting, would have allowed the entire claim to proceed to trial, rejecting the premise that paragraphs (d) to (h) sought relief under section 24 of the Charter.

Ravndahl's appeal to the Supreme Court of Canada raised the following constitutional question:

Is s. 3 of The Limitation of Actions Act, R.S.S. 1978, c. L-15, constitutionally inapplicable to the appellant's claims for personal relief, including damages, reinstatement and other monetary remedies, in an action alleging that s. 98.1(5) of The Workers Compensation Act, 1979, S.S. 1979, c. W-17.1, and related legislation is of no force or effect to the extent that it breaches her rights under the Canadian Charter of Rights and Freedoms? (13) The federal Attorney-General and seven of the provincial attorneys-general intervened. (14) The Supreme Court of Canada ultimately answered the constitutional question in the negative and dismissed the appeal.

Since this case proceeded on a pre-trial motion, the merits of the section 15 claim were not yet before the courts. It may be that the legislative history reflects an assumption that, at least effective April 17, 1985, the Charter required that remarriage not terminate entitlement to a survivor's pension. However, there has been no determination that the legislature proceeded on that basis, nor, even assuming it did, that this is an accurate assessment of the constitutional law. Justice Smith in the...