Reference Re Family Benefits Act (N.S.), Section 5, (1986) 75 N.S.R.(2d) 338 (CA)

• Judge: Hart, Jones, MacKeigan, Macdonald and Pace, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 27, 1986
• Jurisdiction: Nova Scotia
• Citations: (1986), 75 N.S.R.(2d) 338 (CA)

Ref. Re Family Benefits Act (1986), 75 N.S.R.(2d) 338 (CA);

    186 A.P.R. 338

MLB headnote and full text

Reference Re Family Benefits Act (N.S.), Section 5

(S.C.A. No. 01609)

Indexed As: Reference Re Family Benefits Act (N.S.), Section 5

Nova Scotia Supreme Court

Appeal Division

Hart, Jones, MacKeigan, Macdonald and Pace, JJ.A.

November 27, 1986.

Summary:

The Family Benefits Act, S.N.S. 1977, c. 8, s. 5, provided benefits to needy disabled people and old people (s. 5(1)), disabled fathers with dependent children (s. 5(2)), certain classes of women with dependent children (s. 5(3)), single mothers with dependent children (s. 5(4A), (4B)) and foster parents (s. 5(5)). In Phillips v. Social Assistance Appeal Board (N.S.) (1986), 73 N.S.R.(2d) 415; 176 A.P.R. 415, the Nova Scotia Supreme Court, Trial Division, ruled that s. 5(4) providing benefits to single mothers discriminated against a single father with a dependent child contrary to s. 15(1) of the Charter.

Subsequently, the Lieutenant Governor in Council referred the question of whether any or all of the subsections of s. 5 violated s. 15(1) of the Charter.

The Nova Scotia Court of Appeal held that subss. 2, 3, 4, 4A and 4B violated s. 15(1), because they discriminated on the basis of sex. Further, the provisions did not constitute an affirmative action program within s. 15(2) and did not constitute a reasonable limit under s. 1 and were therefore not saved by either s. 15(2) or s. 1 of the Charter.

The court refused to rule on ss. 5(1) or 5(5) respecting age, disability and foster children, because there was no evidence of how either affected any class of people and therefore there was no basis for a ruling.

Civil Rights - Topic 902

Discrimination - Defined - The Nova Scotia Court of Appeal held that more than mere unequal treatment was necessary to constitute discrimination under s. 15(1) of the Charter - Rather, to constitute discrimination the unequal treatment must be unfair or unjustified - See paragraphs 11 to 20.

Civil Rights - Topic 5583

Equality and protection of the law - Affirmative action programs - What constitute - Poverty relief - The Nova Scotia Court of Appeal held that benefits to the needy under the Family Benefits Act, s. 5, did not constitute an affirmative action program within s. 15(2) of the Charter - See paragraphs 32 to 34.

Civil Rights - Topic 5648

Equality and protection of the law - Particular cases - Social assistance legislation - Unmarried parents entitlement - Section 5 of the Family Benefits Act, S.N.S. 1977, c. 8, provided benefits to needy people on the basis of sex distinctions - In particular, women of various classes were eligible for benefits, but most men, including single fathers with dependent children, were ineligible - The Nova Scotia Court of Appeal held that s. 5 violated s. 15(1) of the Charter insofar as it discriminated on the basis of sex and was not saved by s. 1 of the Charter.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 5648 above].

Civil Rights - Topic 8364

Canadian Charter of Rights and Freedoms - Denial of rights - Burden of proof - The Nova Scotia Court of Appeal held that the burden of proof in the first instance is on the party challenging legislation for violating the Charter - See paragraph 29.

Civil Rights - Topic 8424

Canadian Charter of Rights and Freedoms - Operation - Purpose test - The Nova Scotia Court of Appeal held that the meaning of a right or freedom guaranteed by the Charter has to be ascertained by an analysis of the purpose of the guarantee - See paragraph 9.

Civil Rights - Topic 8461

Canadian Charter of Rights and Freedoms - Interpretation - General - The Nova Scotia Court of Appeal held that a court should not comment on Charter issues unless it is necessary - See paragraph 8.

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - The Nova Scotia Court of Appeal considered the American experience, including case law, in construing s. 15(1) of the Charter - See paragraph 24.

Social Assistance - Topic 847

Claims - Benefits - Entitlement - Qualification based on sex - [See Civil Rights - Topic 5648 above].

Social Assistance - Topic 850

Claims - Benefits - Entitlement - Unmarried parents - The Family Benefits Act, S.N.S. 1977, c. 8, s. 5(4), provided: "a mother whose dependent child was born out of wedlock is eligible to apply for benefits", but no provision was made for fathers with dependent illegitimate children - The Nova Scotia Court of Appeal held that s. 5(4) was discriminatory against such fathers contrary to s. 15(1) of the Charter.

Cases Noticed:

Phillips v. Social Assistance Appeal Board (N.S.) (1983), 73 N.S.R.(2d) 415; 176 A.P.R. 415, refd to. [para. 2].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321, refd to. [para. 5].

R. v. Seo, 25 C.C.C.(3d) 385, refd to. [para. 5].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481, refd to. [para. 9].

R. v. McDonald (1985), 10 O.A.C. 321; 21 C.C.C.(3d) 330; 51 O.R.(2d) 745, consd. [para. 11].

Reference re an Act to Amend the Education Act (1986), 13 O.A.C. 241; 53 O.R.(2d) 513, consd. [para. 12].

Reference re Roman Catholic Separate High Schools Funding (1986), 13 O.A.C. 241; 53 O.R.(2d) 513, consd. [para. 12].

Blainey and O.H.A., Re (1986), 14 O.A.C. 194; 54 O.R.(2d) 513, consd. [para. 14].

Shewchuk v. Ricard et al. (1986), 28 D.L.R.(4th) 429, consd. [para. 15].

Andrews v. Law Society of British Columbia, [1986] 4 W.W.R. 242; 27 D.L.R.(4th) 600, disapproved [para. 16].

Stanton v. Stanton, 95 S.Ct. 1373, consd. [para. 24].

Califano v. Westcott, 99 S.Ct. 2655, consd. [para. 25].

R. v. Oakes (1986), 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321, (S.C.C.), appld. [para. 35].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 1, sect. 15, sect. 28 [para. 7].

Family Benefits Act, S.N.S. 1977, c. 8, sect. 3 [para. 27]; sect. 5 [para. 6].

Constitution Act, 1982, sect. 52(1) [para. 7].

Authors and Works Noticed:

Bayefsky and Eberts, Equality Rights and the Canadian Charter of Rights and Freedoms, pp. 11 [para. 10]; 527 [para. 22].

Hogg, Constitutional Law of Canada (2nd Ed.), p. 798 [para. 10].

Laskin, Canadian Constitutional Law (5th Ed.), vol. 2, p. 1268 [para. 32].

Nowak, Rotunda and Young, Constitutional Law (2nd Ed.), p. 823 [para. 3].

Tarnopolsky and Beaudoin, Canadian Charter of Rights and Freedoms, pp. 422 [para. 21]; 423 [para. 33]; 436 [para. 21].

Counsel:

Reinhold M. Endres and Alison Scott, for the Attorney General;

Joan M. Dawkins, for other interested parties;

Tim Hill, for Halifax Cornwallis New Democratic Party.

This case was heard on September 12, 1986, at Halifax, Nova Scotia, before Hart, Jones, MacKeigan, Macdonald and Pace, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On November 27, 1986, the following judgment of the Appeal Division was delivered: