Workers' Compensation Board (N.S.) v. O'Quinn et al., (1997) 157 N.S.R.(2d) 282 (CA)

• Judge: Hallett, Roscoe and Bateman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 23, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 157 N.S.R.(2d) 282 (CA)

WCB v. O'Quinn (1997), 157 N.S.R.(2d) 282 (CA);

    462 A.P.R. 282

MLB headnote and full text

The Workers' Compensation Board of Nova Scotia (appellant) v. Helene O'Quinn, the Nova Scotia Human Rights Commission and Susan M. Ashley, a Board of Inquiry appointed pursuant to Section 31A(1) of the Human Rights Act (respondents)

(C.A. No. 128859)

Indexed As: Workers' Compensation Board (N.S.) v. O'Quinn et al.

Nova Scotia Court of Appeal

Hallett, Roscoe and Bateman, JJ.A.

January 23, 1997.

Summary:

In 1980 O'Quinn's common law husband drowned during the course of his employ­ment. O'Quinn received workers' compensa­tion benefits for herself and her son. In 1986 O'Quinn married. Section 61 of the Workers' Compensation Act provided that O'Quinn's benefits would cease if she married. O'Quinn received no further benefits. In 1992, s. 61 was repealed. O'Quinn requested that the Workers' Compensation Board reinstate her benefits. The Workers' Compensation Board refused. O'Quinn filed a complaint with the Nova Scotia Human Rights Commission, alleging that she was being discriminated against by the Worker's Compensation Board on the basis of her marital status. A Board of Inquiry held that the Worker's Compensa­tion Board had discriminated against O'Quinn on the basis of marital status and ordered that her claim be reconsidered with­out regard to marital status and directed the Board to notify all other potential claimants in O'Quinn's position that they could apply for reinstatement of their pensions. The Worker's Compensation Board appealed.

The Nova Scotia Court of Appeal allowed the appeal and set aside the order of the Board of Inquiry.

Editor's Note: For related proceedings see 147 N.S.R.(2d) 28; 426 A.P.R. 28.

Administrative Law - Topic 9052

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Human Rights Commission - Board of Inquiry - The Nova Scotia Court of Appeal, per Hallett, J.A., stated that "the Legislature, in enacting ss. 34(7) and (8) of the Human Rights Act, did not intend to confer on a Board of Inquiry jurisdiction to declare invalid other provincial legisla­tion. The conferring of such a jurisdiction would require language similar to s. 52 of the Constitution Act, 1982. There is no such provision in the Human Rights Act." - See paragraph 54.

Administrative Law - Topic 9052

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Human Rights Commission - Board of Inquiry - Pursuant to s. 61 of the Workers' Compensation Act, O'Quinn's benefits as a dependent widow ceased when she married - Section 61 was repealed - The Workers' Compensation Board (the Board) refused to reinstate O'Quinn's benefits - A Board of Inquiry under the Human Rights Act found that the Board had discriminated against O'Quinn, ordered her claim to be reconsidered without regard to marital status and directed the Board to notify others in O'Quinn's position that they could reapply - The Nova Scotia Court of Appeal, per Hallett, J.A., held that, in the absence of a Charter challenge, the Board of Inquiry exceeded its jurisdiction under ss. 34(7) and 34(8) of the Human Rights Act in rendering a decision and remedy which in effect declared invalid the legis­lation which repealed s. 61 - See para­graph 54.

Administrative Law - Topic 9052

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Human Rights Commission - Board of Inquiry - Pursuant to s. 61 of the Workers' Compensation Act, O'Quinn's benefits as a dependent widow ceased when she married - Section 61 was repealed - The Workers' Compensation Board refused to reinstate O'Quinn's benefits - A Board of Inquiry under the Human Rights Act (the Board) found that O'Quinn had been discriminated against, ordered that her claim be recon­sidered and directed the Workers' Com­pensation Board to notify others in O'Quinn's position that they could reapply - The Nova Scotia Court of Appeal, per Hallett, J.A., stated that the effect of the Board's decision was to declare invalid the legislation which repealed s. 61 - Absent a judicial determination respecting juris­diction to declare legislation unconstitu­tional, the Board should not have exercised such a jurisdiction - The proper procedure was a Charter challenge in the Nova Scotia Supreme Court - See paragraphs 46 to 56.

Civil Rights - Topic 936

Discrimination - Government programs - Workers' compensation - Pursuant to s. 61 of the Workers' Compensation Act, O'Quinn's benefits as a dependent widow ceased when she married - Section 61 was repealed - The Workers' Compensation Board (the Board) refused to reinstate O'Quinn's benefits - A Board of Inquiry under the Human Rights Act found that s. 70 of the Workers' Compensation Act permitted the Board to reconsider O'Quinn's claim and that failure to do so constituted discrimination on the basis of marital status - The Nova Scotia Court of Appeal, per Bateman, J.A., held that there was no "claim, decision or adjustment" to be reopened within the meaning of s. 70 - Section 70 was directed to changes in a person's individual situation not changes in the law and did not permit O'Quinn's claim to be reopened - If there was discrimina­tion, it was attributable to the legislation repealing s. 61, not the Board - See para­graphs 1 to 22.

Civil Rights - Topic 936

Discrimination - Government programs - Workers' compensation - Pursuant to s. 61 of the Workers' Compensation Act, O'Quinn's benefits as a dependent widow ceased when she married - Section 61 was repealed - The Workers' Compensation Board (the Board) refused to reinstate O'Quinn's benefits - O'Quinn filed a com­plaint of discrimination on the basis of marital status with the Human Rights Commission - The Nova Scotia Court of Appeal, per Hallett, J.A., held that the presumption against the retroactive or retrospective application of the legislation repealing s. 61 was not rebutted and O'Quinn's claim could not be reopened - If there was discrimination it was attributable to the Legislature enacting legislation that violated s. 15 of the Charter, not the Board - See paragraphs 25 to 43.

Civil Rights - Topic 967

Discrimination - Facilities and services customarily available to public - Dis­crimination on basis of family or marital status - [See both Civil Rights - Topic 936 ].

Civil Rights - Topic 7003

Federal or provincial legislation - General - Interpretation of human rights legislation - [See first Administra­tive Law - Topic 9052 ].

Civil Rights - Topic 7005

Federal or provincial legislation - General - Application of human rights legislation on conflicting legislation - The Nova Scotia Court of Appeal refused to use the Charter and the Human Rights Act as an aid in interpreting the Workers' Compen­sation Act where there was an absence of ambiguity in the statutory language - See paragraphs 23 and 44, 45.

Civil Rights - Topic 7082

Federal or provincial legislation - General - Boards of inquiry - Jurisdiction - [See all Administrative Law - Topic 9052 ].

Civil Rights - Topic 8318

Canadian Charter of Rights and Freedoms - General - Application - Statutory inter­pretation - Preference to Charter values - [See Civil Rights - Topic 7005 ].

Constitutional Law - Topic 2507.2

Determination of validity of statutes or acts - General principles - Declaration of invalidity - [See all Administrative Law - Topic 9052 ].

Statutes - Topic 6704

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity and retroactivity - [See second Civil Rights - Topic 936 ].

Workers' Compensation - Topic 62

General principles - Interpretation - Par­ticular provisions - [See both Civil Rights - Topic 936 ].

Workers' Compensation - Topic 1069

Boards - Jurisdiction - To reconsider, vary, amend or revoke decision - [See both Civil Rights - Topic 936 ].

Workers' Compensation - Topic 5545

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

Workers' Compensation - Topic 6968

Practice - Decision of board - Recon­sideration of decision - [See both Civil Rights - Topic 936 ].

Cases Noticed:

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658; 13 Admin. L.R.(2d) 1; 46 C.C.E.L. 1; 93 C.L.L.C. 17,006, consd. [paras. 20, 44].

Symes v. Minister of National Revenue, [1993] 4 S.C.R. 695; 161 N.R. 243; [1994] 1 C.T.C. 40; 110 D.L.R.(4th) 470; 19 C.R.R.(2d) 1; 94 D.T.C. 6001, consd. [para. 23].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401; [1976] C.T.C. 1; 66 D.L.R.(3d) 449; 75 D.T.C. 5451, refd to. [para. 29].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340; [1991] 1 W.W.R. 643; 77 D.L.R.(4th) 94; 52 B.C.L.R.(2d) 68; 50 Admin. L.R. 69; 2 C.R.R.(2d) 157; 91 C.L.L.C. 17,002, refd to. [para. 49].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271; 81 D.L.R.(4th) 121; 50 Admin. L.R. 44; 4 C.R.R.(2d) 1; 91 C.L.L.C. 14,024, refd to. [para. 49].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1; 81 D.L.R.(4th) 358; 50 Admin. L.R. 1, refd to. [para. 49].

Cooper v. Canadian Human Rights Com­mission (1996), 204 N.R. 1 (S.C.C.), consd. [para. 50].

Bell v. Canadian Human Rights Commis­sion - see Cooper v. Canadian Human Rights Commission.

Statutes Noticed:

Human Rights Act, R.S.N.S. 1989, c. 214, sect. 34(7), sect. 34(8) [para. 48].

Workers' Compensation Act, R.S.N.S. 1989, c. 508, sect. 61(1) [para. 3]; sect. 70(1) [para. 12].

Workers' Compensation Act, An act to amend, S.N.S. 1992, c. 35, sect. 6 [para. 31].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), p. 552 [para. 29].

Counsel:

David P.S. Farrar, for the appellant;

Valerie A. MacKenzie, for the Human Rights Commission;

Louise Walsh Poirier, for the Attorney General.

This appeal was heard on November 19, 1996, before Hallett, Roscoe and Bateman, JJ.A., of the Nova Scotia Court of Appeal.

On January 23, 1997, the judgment was delivered for the Court of Appeal and the following opinions were filed:

Bateman, J.A. (Roscoe, J.A., concurring) - see paragraphs 1 to 24;

Hallett, J.A. (Roscoe, J.A., concurring) - see paragraphs 25 to 57.