Court of Appeal

CASE NO.                                                   VOL. NO.                                                           PAGE

ATTORNEY GENERAL OF NOVA               - and -                       GRACE ELIZABETH (BETTY)

SCOTIA, representing Her Majesty                                                                           BAUMAN, et al.

the Queen in right of the Province of

Nova Scotia

(Appellant)                                                                                                                       (Respondent)

                                                                        -  and  -                   WORKERS’ COMPENSATION

                                                                                                             BOARD OF NOVA SCOTIA

                                                                                                                                        (Respondent)

CA 165426                                                  Halifax, N.S.                                         BATEMAN, J.A.

                    [Cite as:  Bauman v. Attorney General (Nova Scotia), 2001 NSCA 51]

APPEAL HEARD:                             February 9, 2001

JUDGMENT DELIVERED:            March 29th, 2001       

SUBJECT:     Retrospectivity of legislation.  Section 15(1) of the Canadian Charter of Rights and Freedoms.

SUMMARY:  The Province of Nova Scotia in right of the Attorney General and the Workers' Compensation Board (nominally a respondent) appealed a decision of a judge of the Supreme Court which, inter alia, declared certain legislation to be in contravention of s.15 of the Charter.

The respondents (“the claimants”) are 62 persons who were widowed and in receipt of a survivors pension pursuant to a Workers’ Compensation Act in effect prior to April 17, 1985 (this is the date upon which s.15 of the Charter took effect).  Each remarried, also prior to that date, and her pension was terminated in accordance with the provisions of the Workers’ Compensation Act in effect at the date of remarriage (“the termination provision”).  In 1992 the last  “termination provision” was repealed.  Accordingly, no widows who remarried after that time and were in receipt of a survivors pension lost the pension benefit.  In 1999 legislation was enacted reinstating pensions, retroactive to April 17, 1985, for those widows whose benefit had been terminated after that date and before the repeal of the termination provision.  Pensions for the widows who lost them before April 17, 1985 were reinstated but effective only as of January 1st, 1999.  The respondents successfully argued at trial that their pensions should be reinstated, retroactive to April 17, 1985.  It was their submission, accepted by the trial judge, that by not reviving the pensions after that date the government had discriminated against them, in contravention of s. 15(1) of the Charter.   At trial the respondents had challenged various statutory provisions, including the two most recent termination provisions, the 1992 legislation repealing the termination provision and the 1999 legislation reinstating the pensions.  The trial judge found that all of the impugned legislation was unconstitutional and instructed the Workers' Compensation Board “to accept applications from the plaintiffs for widows' pensions benefits from April 17, 1985 to January 1, 1999.”

ISSUES:         1.         Did the relief sought by the respondents result in an impermissible retrospective application of the Charter? 

2.                  Is the impugned legislation unconstitutional?

RESULT:       The trial judge erred in concluding that the relief sought by the respondents would not result in an impermissible retrospective application of the Charter.  She further erred in concluding that the repeal and reinstatement provisions were unconstitutional.  The Charter does not apply retroactively or retrospectively.  (Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358) It was the respondents' submission at trial that the termination provisions were unconstitutional thus requiring the government to reinstate the pensions when s. 15 of the Charter came into effect.  The termination provisions did not operate post-Charter (i.e., after s.15 came into effect) to disentitle these respondents to pensions.  The effect of the termination provision was complete pre-Charter and was event  based.  Unlike the circumstances in Benner, it did not involve the  contemporary application of a law which happened to have been passed before s.15 came into effect.

In addition, neither the repeal nor the reinstatement provisions offended the equality section (s.15) of the Charter.  In particular, applying the three step analysis from Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, the distinction in the reinstatement provision between widows whose pensions were terminated before s. 15 came into effect, and those widows whose pensions were terminated after s. 15 came into effect, was not one drawn upon an enumerated or analogous ground. 

The trial judge acquiesced in the respondents' collective challenge to the various legislative provisions.  In so doing she failed to separate the issue of retrospectivity from the s.15 analysis and fell into error.  Contributing to the error was her acceptance of the flawed reasoning in Grigg v. British Columbia (1996), 138 D.L.R. 4^th 548 (B.C.S.C.).

Appeal allowed.