NOVA SCOTIA COURT OF APPEAL
[Cite as: Bauman v. Nova Scotia (Attorney General), 2001 NSCA 51]
Glube, C.J.N.S.; Bateman and Oland , JJ.A.
BETWEEN:
ATTORNEY GENERAL OF NOVA SCOTIA, representing Her
Majesty the Queen in right of the Province of Nova Scotia
Appellant
- and -
GRACE ELIZABETH (BETTY) BAUMAN, ET AL.
Respondent
- and -
WORKERS’ COMPENSATION BOARD OF NOVA SCOTIA
Respondent
REASONS FOR JUDGMENT
Counsel: Catherine J. Lunn for the appellant
C. Scott Sterns, Darlene A. Jamieson and Deanna M. Borden for the respondents Grace Bauman et al
David Farrar, Janet E. Curry and Christa M. Hellstrom for the respondent Board
Appeal Heard: February 9, 2001
Judgment Delivered: March 29, 2001
THE COURT: Appeal allowed per reasons for judgment of Bateman, J.A.; Glube, C.J.N.S. and Oland, J.A. concurring.
BATEMAN, J.A.:
[1] This is an appeal from a decision of Justice Heather Robertson of the Supreme Court. The appellant is the Province of Nova Scotia in right of the Attorney General. Although nominally a respondent, the Workers' Compensation Board joins the Province in appealing the trial decision. For convenience I will refer to the Province and the Workers' Compensation Board together as “the Province”. 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. 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.
[2] The claimants successfully argued at trial that the survivors 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 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (“the Charter”) .
FACTUAL BACKGROUND:
[3] In Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890, Sopinka J. reviewed the history of workers' compensation in Canada. At § 24 - 27:
[24] Workers' compensation is a system of compulsory no-fault mutual insurance administered by the state. Its origins go back to 19th century Germany, whence it spread to many other countries, including the United Kingdom and the United States. In Canada, the history of workers' compensation begins with the report of the Honourable Sir William Ralph Meredith, one-time Chief Justice of Ontario, who in 1910 was appointed to study systems of workers' compensation around the world and recommend a scheme for Ontario. He proposed compensating injured workers through an accident fund collected from industry and under the management of the state. His proposal was adopted by Ontario in 1914. The other provinces soon followed suit.. . .
[25] Sir William Meredith also proposed what has since become known as the "historic trade-off" by which workers lost their cause of action against their employers but gained compensation that depends neither on the fault of the employer nor its ability to pay. Similarly, employers were forced to contribute to a mandatory insurance scheme, but gained freedom from potentially crippling liability. . .
[27] Montgomery J. also commented on the purposes of workers compensation in Medwid v. Ontario (1988), 48 D.L.R. (4th) 272 (Ont. H.C.). He stated at p. 279 that the scheme is based on four fundamental principles:
(a) compensation paid to injured workers without regard to fault;
(b) injured workers should enjoy security of payment;
(c) administration of the compensation schemes and adjudication of claims handled by an independent commission, and
(d) compensation to injured workers provided quickly without court proceedings.
I would note that these four principles are interconnected. For instance, security of payment is assured by the existence of an injury fund that is maintained through contributions from employers and administered by an independent commission, the Workers' Compensation Board. The principle of quick compensation without the need for court proceedings similarly depends upon the fund and the adjudication of claims by the Board. The principle of no-fault recovery assists the goal of speedy compensation by reducing the number of issues that must be adjudicated. The bar to actions is not ancillary to this scheme but central to it. If there were no bar, then the integrity of the system would be compromised as employers sought to have their industries exempted from the requirement of paying premiums toward an insurance system that did not, in fact, provide them with any insurance.
[4] The claimants are all women whose husbands were killed during the course of their employment. Upon her husband’s death, each became eligible for a survivors pension as provided under the Act in force at the time of death. An example of one such entitlement provision is s. 55 of the Workmen’s Compensation Act, R.S.N.S. 1967, c. 343 :
55 Where death results from an injury the amount of compensation shall be:
(a) the necessary expenses of the burial of the workman, not exceeding three hundred dollars and such further sums as the Board considers reasonable but not exceeding one hundred dollars, toward the expenses of transportation of the body of the workman from the place of his death to his place of residence whether death occurred within or without the Province of Nova Scotia;
(b) where the widow or an invalid widower is the sole dependent a lump sum payment of two hundred and fifty dollars and thereafter a monthly payment of ninety dollars;
(c) where the dependents are a widow or an invalid widower and one or more children, a lump sum payment of two hundred and fifty dollars and thereafter a monthly payment of ninety dollars with an additional monthly payment of thirty dollars for each child under the age of eighteen years; a widow entitled to compensation by reason of the death of her husband or an invalid widower entitled to compensation by reason of the death of his wife shall not be entitled to any further compensation as a dependent of any other workman whose death results from an accident;
(d) where the dependents are children, a monthly payment of thirty-five dollars to each child under the age of eighteen years;
(e) where no compensation is payable under clause (b), (c), or (d) hereof, and persons other than those mentioned in the foregoing clauses are dependents, a sum reasonable and proportionate to the pecuniary loss to such dependents occasioned by the death, to be determined by the Board, but not exceeding sixty dollars per month to any one dependent and not exceeding in the whole seventy-five dollars per month.
(Emphasis added)
[5] Entitlement to the survivors benefit has continued, although the wording of the legislative provision has varied over the years. The pension provided in s. 55 of the Workmen’s Compensation Act, R.S.N.S. 1967 c. 343, was restricted by the application of s. 76(1):
76(1) If a dependent widow marries, her right to compensation under clauses (b) or (c) of Section 55 shall cease, but she shall be entitled to thirty-five dollars a month for a period of twenty-five months from the date of the marriage or, in the discretion of the Board, to be paid an amount equal to such payments in one or more amounts, payable during the said twenty-five months; and upon the payment of same all payments of compensation to her shall cease.
[6] The last such limiting provision in place was s. 61 of the Workers’ Compensation Act, R.S.N.S. 1989, c. 508:
61(1) If a dependant widow marries, her right to compensation under clauses (b) and (c) of Section 33 shall cease, but she shall be entitled to thirty-five dollars a month for a period of twenty-five months from the date of the marriage or, in the discretion of the Board, to be paid an amount equal to such payments in one or more amounts, payable during the said twenty-five months, and upon the payment of same all payments of compensation to her shall cease.
(2) If a dependant widow marries on or after the first day of January, 1974, her right to compensation under clauses (b) and (c) of Section 33 shall cease, but she shall be entitled to fifty dollars a month for a period of twenty‑five months from the date of the marriage or, in the discretion of the Board, to be paid an amount equal to such payments in one or more amounts, payable during the said twenty‑five months, and upon the payment of same all payments of compensation to her shall cease.
(3) Subsections (1) and (2) shall not apply to payments to a widow in respect of a child.
[7] I will refer to ss. 76 and 61 as “the termination provisions”.
[8] On April 17, 1985, s. 15(1) (the equality provision) of the Charter came into effect. When I refer to “pre-Charter” in this decision I mean before April 17, 1985.
[9] In 1992, s. 61 was repealed by s. 6 of the Workers’ Compensation Act, S.N.S. 1992, c.35. As a result, widows in receipt of a survivors pension who remarried subsequent to these amendments were no longer disentitled to the continuation of the benefit.
[10] In 1999 there were further amendments to the Workers’ Compensation Act (the Act to Amend the Workers’ Compensation Act, S.N.S. 1999, c. 1, known as Bill 90, royal assent on April 16, 1999) permitting reinstatement of pensions for all recipients of survivor benefits who had been disentitled prior to the 1992 amendment. Pensions for those who had lost them as a result of remarriage between 1985 and 1992, to whom I will refer as the “post-Charter widows”, were eligible for reinstatement retroactive to April 17, 1985 or the date of remarriage. Pensions for widows who had remarried before that date, to whom I will refer as “pre-Charter widows”, could be reinstated effective January 1, 1999.
[11] This 1999 amendment provided:
7 Chapter 10 is amended by adding immediately after Section 60 the following Section:
60A (1) In this Section, “former Act” means Chapter 508 of the Revised Statutes, 1989, as it read from time to time before the coming into force of this Section.
(2) This Section applies to a dependent spouse whose survivor benefits under the former Act were, before October 1, 1992, discontinued on remarriage pursuant to Section 61 of the former Act.
(3) A dependent spouse may apply to the Board to have survivor benefits reinstated pursuant to this Section and the Board may reinstate the benefits.
(4) An application pursuant to subsection (3) shall be made in writing on or before January 1, 2001, and the Board shall not accept an application that is received after that date.
(5) No application may be made pursuant to subsection (3) by the estate of a dependent spouse.
(6) No benefits shall be reinstated pursuant to this Section for a period of time
(a) before January 1, 1999, for a dependent spouse whose survivor benefits under the former Act were discontinued before April 17, 1985;or
(b) before the later of April 17, 1985, and the date the survivor benefits were discontinued under the former Act for a dependent spouse whose survivor benefits under the former Act were discontinued on or after April 17, 1985, and before October 1, 1992.
(7) The Board, with the approval of the Governor in Council, may make regulations
(a) respecting the calculation of benefits pursuant to this Section;
(b) respecting the manner of reinstating benefits pursuant to this Section;
(c) deemed necessary or advisable to carry out effectively the intent and purpose of this Section.
(8) The exercise by the Board of the authority contained in subsection (7) is regulations within the meaning of the Regulations Act.
(Emphasis added)
[12] The claimants, all pre-Charter widows, were thus eligible to apply for reinstatement of their pensions effective January 1, 1999. In this action, they sought to have them reinstated effective April 17, 1985.
GROUNDS OF APPEAL:
[13] The appellant Province identifies the following issues:
1. Did the Learned Chambers Judge err in law when she found that the Respondents’ claim does not necessitate a retrospective application of the Charter?
2. Did the Learned Chambers Judge err in identifying the incorrect comparator group for step two of the equality analysis under section 15(1) of the Charter?
3. Did the Learned Chambers Judge err in finding marital status as an analogous ground?
4. Did the Learned Chambers Judge err in holding that section 60A(6)(a) of the Workers’ Compensation Act constitutes discrimination under section 15(1) of the Charter?
5. Did the Learned Chambers Judge err in concluding that s. 60A(6)(a) is not saved by section 1 of the Charter?
PROCEDURAL BACKGROUND:
[14] The matter was commenced by Originating Notice (Application Inter Partes) wherein the claimants requested the following declaratory relief:
[An application is made] for an order, declaration or relief, ordering that Section 7 of an Act to Amend Chapter 10 of the Acts of 1994-95, the Worker's Compensation Act, S.N.S. 1999 C.I., s. 7 and an Act to Amend Chapter 508 of the Revised Statutes, 1989, the Workers Compensation Act, S.N.S., 1992, c. 35, s.6 are unconstitutional and are contrary to the Canadian Charter of Rights and Freedoms (“the Charter”), s. 13, Part I of the Constitution Act, 1982 being Schedule “B” to the Canada Act, 1982 (U.K.), C.11, and are not saved by Section 1 of the Charter.
AND TAKE NOTICE that it will be alleged that the relevant portions of the Workers' Compensation Acts are contrary to the Charter, s. 15 and not saved by the Charter, s. 1 because they discriminate based on marital status.
[15] The impugned legislation was, therefore, An Act to Amend Chapter 508 of the Revised Statutes, 1989, the Workers’ Compensation Act, S.N.S., 1992, c. 35, s. 6 which repealed the termination provision that was in existence until 1992. It provided simply, “Section 61 of said Chapter 508 is repealed”. Section 61 is set out above at § 6 and is the termination provision which was in effect in 1992.
[16] Also challenged was s. 7 of an Act to Amend Chapter 10 of the Acts of 1994-95, the Worker's Compensation Act, S.N.S. 1999 c. 1, s. 7 which is the 1999 amendment referred to at § 11 above facilitating reinstatement of pensions for post-Charter widows retroactive to April 17, 1985 and for pre-Charter widows (the claimants) from January 1, 1999.
[17] Therefore, by Originating Notice, the claimants sought a declaration of unconstitutionality in relation to: (i) the amendment to the Workers' Compensation Act which repealed the termination provision; and, (ii) the provision which amended that Act to reinstate benefits for remarried widows.
[18] In his memorandum to the trial judge, counsel for the claimants requested relief in addition to that sought in the Originating Notice. He included a request for a declaration that s. 61, the last termination provision, and s. 76, its predecessor, were unconstitutional. The Originating Notice was not amended. Neither the Province nor the Workers’ Compensation Board agreed to expanding the scope of the action.
[19] By decision dated April 25, 2000 (reported at (2000, 185 N.S.R. (2d) 225), the trial judge granted the following relief:
[80] In the result, the plaintiffs shall have the remedy sought. Section 76 of the 1967 Act, Section 61 of the 1989 Act, Section 6 of 1992 Act and Section 7 of the 1999 Act are unconstitutional and the Workers' Compensation Board is instructed to accept applications from the plaintiffs for widows' pensions benefits from April 17, 1985 to January 1, 1999.
[20] This is, verbatim, the relief which was requested in the pre-trial memorandum of the claimants. It was subsequently incorporated into an order. The effect of this order is unclear. A declaration that the termination provisions are unconstitutional, effective 1985, does not advance the position of the claimants. Their pensions were terminated before that date. The declaration of invalidity of the repeal provision would seem to have no effect. The declaration in relation to the reinstatement provision leaves the revived pensions for both the post-Charter and pre-Charter widows in doubt. Finally, I am unaware of any authority holding that a judge of the Supreme Court can order a body such as the Workers’ Compensation Board to take specific action. The Workers’ Compensation Board derives its jurisdiction solely from statute.
STANDARD OF REVIEW:
[21] The respondent submits that this was a case involving mixed law and fact requiring finding of palpable and overriding error to justify appellate intervention. There was no material dispute on the facts relevant to the resolution of the claim, save for certain facts which relate to an analysis pursuant to s. 1 of the Charter. The issues of retrospectivity and the equality analysis involve questions of law. The standard of review is one of correctness.
ANALYSIS:
[22] Confusion has arisen in this case due to the way in which the Charter challenge was advanced by the claimants. As is clear from the procedural history above, they have made a global challenge to several of the sections of the Workers’ Compensation Act. None of the challenged provisions were in effect at the same time. The claimants contested the constitutional validity of the termination provisions, the last of which was repealed in 1992 (s. 76 was the termination section of the 1967 Workmen's Compensation Act, as it was then called. Section 61 was the termination section of the 1989 Act.). They challenged the 1992 amending legislation which repealed s. 61 and they challenged the 1999 legislation which facilitates reinstatement of pensions. In his submissions counsel for the claimants made no effort to separate, for analytical purposes, the individual sections that were impugned. This led to reversible error.
[23] The termination provisions, one being the successor to the other, can be considered together. Although a challenge to the termination provisions was, arguably, not properly before the trial judge, I will address that part of the order in the interests of saving the parties additional time and expense of re-litigating the issue. The appropriate starting point for that analysis is a consideration of retroactivity/retrospectivity. I will deal with the reinstatement and repeal provisions separately.
The Termination Provisions:
[24] The trial judge set out the claimants' argument as follows:
[30] The plaintiffs argue that the defendant has been discriminated against in the past and that the discrimination remains ongoing. From 1948 to 1984 (the respective dates of their remarriage) the plaintiffs acknowledges that such discrimination was not unconstitutional. However, they argue that from April 17, 1985 forward they had the right to be treated equally. When it became unconstitutional to disqualify widows, they should have been reinstated or entitled to re‑apply for widows benefits.
[31] Further, counsel for the plaintiffs argues that this case fundamentally concerns the human dignity of the plaintiffs and their equal treatment before the law. Counsel stresses the provinces' failure to cure the impugned law after April 17, 1985 and asserts that from that date these post Charter breaches obviated the retroactivity arguments.
[32] Counsel relies on Grigg et al v. British Columbia (1996), 138 D.L.R. (4th) 548, (B.C.S.C.). The same legislation was challenged by a group of widow survivors who remarried before April 1985 and had their benefits terminated. The Court found that this case did not involve the retroactive application of the Charter based on an event occurring prior to the advent of the Charter (their remarriage) but on the legislature's post‑Charter failure to reinstate benefits. The discrimination was based upon the marital status of the group, an un‑enumerated but analogous ground under s. 15 of the Charter.
(Emphasis added)
[25] The Province says that the relief granted by the trial judge results in a classic, prohibited retrospective application of the Charter. They cite, inter alia, Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 (S.C.C.) There, at § 39, Iacobucci, J. approved the following definitions of retroactivity and retrospectivity, quoting from E. A. Driedger in “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at pp. 268 - 269:
A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event. [Emphasis italicized in original]
(Emphasis added)
[26] The Charter does not apply retroactively or retrospectively (Benner at § 40, per Iacobucci, J.). The question before us is whether the relief ordered by the trial judge results in an illegitimate retrospective operation of the Charter, as is submitted by the Province. We are not here conducting a direct analysis of retrospectivity in the interpretation of a statute, but rather, determining what the Charter requires of legislation already in effect at its operational date. This is a complex task. Linden, J.A., in Benner v. Canada (Secretary of State), [1994] 1 F.C.R. 250 (F.C.A.)) said in reference to the Driedger definition quoted above:
When reading this helpful description, it must be remembered that Professor Driedger was referring to statutes and not to the Constitution. The issue of retrospectivity is more complicated in a Charter setting because the law, and not just the facts, is subject to the Charter.
[27] The problem lies in recognizing when an impermissible retrospective operation results. As was noted by William Black In “Charter Rights - Application to Pre-Enactment Events” (1982), U.B.C.L. Review (Charter special edition) 59 at p. 63:
. . . the distinction between a future consequence of a past event (retrospective) and a future consequence of an ongoing condition or state of affairs (prospective) is often unclear, ...
[28] A declaration of invalidity in relation to the termination provisions of the Workers’ Compensation Act cannot pre-date the Charter and thus cannot restore the pensions terminated pre-Charter. That would be classic, prohibited retrospectivity. The claimants do not seek this result, but say that the pensions should be revived effective April 17, 1985. It is the claimants' submission that because they seek only post-Charter reinstatement, they avoid offending the presumption against retrospectivity.
[29] A significant misconception pervades the claimants' position. This has led to rhetorical excess in their submissions and is a fundamental flaw in their analysis. They say that termination of their pensions prior to April 17, 1985, was “discriminatory” — that at the time their pensions were terminated the relevant provision was “unconstitutional” or “unlawful”. That is not so. The termination of the pensions on account of remarriage may have reflected antiquated notions of spousal dependance; it may have been unwise, ill-founded, unfair or improper, but it was not “unconstitutional”, “illegal” or “unlawful”. Nor was the termination “discriminatory” in the sense that it contravened s. 15(1) of the Charter, which was not then in effect. The comments of Martin, J.A. in R. v. Antoine (1983), 5 C.C.C. (3d) 97 (Ont. C.A.) at p.104, although made in the context of an alleged violation of the right to counsel (s. 10(b)), are equally applicable here:
. . .For example, s. 10(b) of the Charter provides that everyone has the right on arrest “to retain and instruct counsel without delay and to be informed of that right”. The words which I have italicized confer a new right. That right could not be contravened prior to the coming into force of the Charter because the right did not exist: see R. v. Lee (1982), 142 D.L.R (3d) 574 . . . (Sask. C.A.).
[30] The “constitutionality” of the termination provisions pre-Charter is not in issue here. They were not unconstitutional nor unlawful prior to 1985. The termination of pensions was not “discriminatory” within the meaning of s. 15 of the Charter at any point prior to April 17, 1985. It is misleading to suggest otherwise.
[31] It is the Province's submission, as it was at trial, that termination of the claimants’ pension benefits by operation of the relevant provision of the various Workers' Compensation Act(s) was a discrete pre-Charter event. The claimants say, however, that with the coming into force of s. 15(1) on April 17, 1985, the fact that the pensions were not reinstated was an ongoing, status-based consequence of a past event. It follows, they say, that they are seeking only a prospective operation of the Charter. The trial judge accepted the claimants' submission. She held that the government had an obligation to reinstate the pensions when the equality provisions of the Charter took effect on April 17, 1985. The government's failure to do so, she found, amounted to a “continuing act of discrimination”.
[32] The parties' positions can best be considered in the context of the Supreme Court of Canada's analysis in Benner. There, the appellant Mark Donald Benner was born in 1962 in the United States to a Canadian mother and an American father. He applied for Canadian citizenship and perfected his application on October 27, 1988. The Citizenship Act, R.S.C., 1985, c. C‑29, provided that persons born abroad before February 15, 1977, where only one parent was a Canadian citizen, would be granted citizenship on application if born of a Canadian father but would be required to undergo a security check and to swear an oath if born of a Canadian mother. For those born after that date, citizenship was automatic upon application if either the mother or the father was Canadian. Mr. Benner's security check revealed that he had been charged with several criminal offences. Accordingly, his application for citizenship was rejected.
[33] Mr. Benner applied for an order in the nature of certiorari quashing the Registrar's decision and for an order in the nature of mandamus requiring the Registrar to grant him citizenship without swearing an oath or being subject to a security check. The application was dismissed by the Federal Court, Trial Division as was his appeal to the Federal Court of Appeal. Mr. Benner was deported. On further appeal to the Supreme Court of Canada at issue were: (1) whether applying s. 15(1) of the Charter to his circumstances involved an illegitimate retroactive or retrospective application; (2) if not, whether the treatment accorded by the Citizenship Act to children born abroad to Canadian mothers before February 15, 1977 offended s. 15(1) of the Charter; and (3) if so, whether the impugned legislation was saved by s. 1.
[34] The Act in effect before 1977, the Canadian Citizenship Act, R.S.C. 1970, c. C‑19 [formerly R.S.C. 1952, c. 33], s. 5(1), had premised the grant of citizenship on gender of the birth parents. It was this distinction that was perpetuated in the successor Act, but only for those born before February 15, 1977. In other words, even though the application for citizenship was made after the Charter had come into effect, the original differential as regards the gender of the birth parent, applied to those born before 1977. The Court concluded that granting the relief sought by Mr. Benner would not be an illegitimate retrospective operation of the Charter.
[35] The difficulty in recognizing the distinction between a future consequence of a past event and a future consequence of an ongoing condition or state of affairs was addressed by the Court in Benner (S.C.R.):
[42] In considering the application of the Charter in relation to facts which took place before it came into force, it is important to look at whether the facts in question constitute a discrete event or establish an ongoing status or characteristic. As Driedger has written in Construction of Statutes (2nd ed. 1983), at p. 192:
These past facts may describe a status or characteristic, or they may describe an event. It is submitted that where the fact‑situation is a status or characteristic (the being something), the enactment is not given retrospective effect when it is applied to persons or things that acquired that status or characteristic before the enactment, if they have it when the enactment comes into force; but where the fact‑situation is an event (the happening of or the becoming something), then the enactment would be given retrospective effect if it is applied so as to attach a new duty, penalty or disability to an event that took place before the enactment.
[43] I believe this is consistent with Wilson J.'s comments in Gamble, supra, particularly with regard to the use of s. 15. Wilson J. wrote at p. 628:
Some rights and freedoms in the Charter seem to me to be particularly susceptible of current application even although such application will of necessity take cognizance of pre‑Charter events. Those Charter rights the purpose of which is to prohibit certain conditions or states of affairs would appear to fall into this category. Such rights are not designed to protect against discrete events but rather to protect against an ongoing condition state of affairs. . . . Section 15 may . . . fall into this category.
[44] Section 15 cannot be used to attack a discrete act which took place before the Charter came into effect. It cannot, for example, be invoked to challenge a pre‑Charter conviction: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Gamble, supra. Where the effect of a law is simply to impose an on‑going discriminatory status or disability on an individual, however, then it will not be insulated from Charter review simply because it happened to be passed before April 17, 1985. If it continues to impose its effects on new applicants today, then it is susceptible to Charter scrutiny today: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
[45] The question, then, is one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of a law which happened to be passed before the Charter came into effect?
[46] I realize that this distinction will not always be as clear as one might like, since many situations may be reasonably seen to involve both past discrete events and on‑going conditions. A status or on‑going condition will often, for example, stem from some past discrete event. A criminal conviction is a single discrete event, but it gives rise to the on‑going condition of being detained, the status of "detainee". Similar observations could be made about a marriage or divorce. Successfully determining whether a particular case involves applying the Charter to a past event or simply to a current condition or status will involve determining whether, in all the circumstances, the most significant or relevant feature of the case is the past event or the current condition resulting from it. This is, as I already stated, a question of characterization, and will vary with the circumstances. Making this determination will depend on the facts of the case, on the law in question, and on the Charter right which the applicant seeks to apply.
(Emphasis added)
[36] The claimants are not “new applicants”. This is not the “contemporary application of a law which happened to be passed before the Charter came into effect”. In Benner, the Citizenship Act was enacted before the Charter, but its effect in denying Mr. Benner citizenship occurred after the Charter was in force. Here, ss. 76 and 61 of the Workers’ Compensation Act(s), had no continuing effect on the claimants. Upon a claimant's remarriage the pension terminated. These provisions had no post-Charter continuing operation, as regards the claimants. The “most significant relevant feature of this case” is the date that each claimant remarried, here, all pre-Charter. It was the event of remarriage that resulted in termination of the pension, not the status of being remarried. Had the claimants remarried and divorced or been widowed shortly thereafter, they were not eligible for reinstatement of the pension. As I have said above, while this is understandably viewed by the claimants as unfair, the termination provisions were not in contravention of the Charter at the time that they affected the claimants.
[37] Even if the advent of s. 15(1) is deemed to have nullified the continuing operation of the termination provisions, which remained a part of the Workers’ Compensation Act until repealed in 1992, the position of the claimants is not advanced. It is not the continuing “status of being remarried” which prevented the claimants from collecting pensions, it is the fact that they remarried before the Charter which event precipitated the termination. The only group affected by the continued operation of the termination provisions was the post-Charter widows. They lost their pensions because the termination provisions remained in effect. Through the 1999 amendment, those pensions have been reinstated effective April 17, 1985. Those persons are not among the claimants.
[38] Critical to the analysis in Benner was the date at which the impugned legislation affected Mr. Benner. The Court referred, with approval, to the remarks of Létourneau, J.A. in the court below:
[57] Létourneau J.A. [for the Federal Court of Appeal] stated, at p. 291, that "[i]t is not enough for one to say that one still suffers from a discriminatory event or legislation which took place or existed prior to the Charter. Otherwise, just about every instance of past discrimination since the turn of the century could be reviewed under section 15, provided the victims still suffer from that past discrimination." This is certainly true, but I do not believe, with respect, that it accurately describes the appellant's situation. Had he applied for citizenship before s. 15 came into effect and been refused, he could not now come before the court and ask that s. 15 be applied to that refusal. But this is not what happened. Until his application in 1988, the appellant had not engaged the legislation governing his entitlement to citizenship at all. The law set out only what his rights to citizenship would be if and when he applied, not what they were. [original emphasis italicized]
(Emphasis added)
[39] The claimants here are in a position opposite to that of Mr. Benner. It was the effect of the Citizenship Act upon Mr. Benner after April 17, 1985 which avoided the question of retrospectivity. Here the termination provisions impacted the claimants before April 17, 1985.
[40] The claimants' position is not advanced because a pension is an ongoing payment rather than a lump sum. The fact that the pre-Charter termination of the pensions has ongoing implications for the claimants does not transform this from a future consequence of a past event. The termination of the pension was complete upon the remarriage of a widow. The cessation of the pension income was not conditional upon the widow remaining remarried. The legislation did not provide for a resumption of the benefit if the new marriage ceased. It did not have a continuing, post-Charter effect on the claimants.
[41] The claimants say that they are denied pensions post-Charter because of an on-going status. They cite R. v. Gamble, [1988] 2 S.C.R. 595, relying upon the comments of Wilson, J. at pp. 625 - 627:
Under both the majority and the minority formulation in Stevens the crucial question becomes: what is the event which is alleged to be in contravention of the Charter? At what point in time does the event which deprives a person of his or her life, liberty or security of the person occur?
In approaching this crucial question it seems to me preferable for the courts to avoid an all or nothing approach which artificially divides the chronology of events into the mutually exclusive categories of pre and post‑Charter. Frequently, an alleged current violation will have to be placed in the context of its pre‑Charter history in order to be fully appreciated. For example, in considering delay before trial Martin J.A. of the Ontario Court of Appeal commented in R. v. Antoine (1983), 5 C.C.C. (3d) 97 (Ont. C.A.), at p. 102:
Manifestly, s. 11(b) of the Charter applies only to trials taking place after it came into force, and it does not reach back and affect past trials. An enactment does not, however, operate retrospectively because a part of the requisites for its operation is drawn from a time antecedent to its coming into force, nor because it takes into account past events: . . .
Charter standards cannot be applied to events occurring before its proclamation but it would be folly, in my view, to exclude from the Court's consideration crucial pre‑Charter history. Indeed, a review of such history will often be necessary when the Court exercises its broad discretion under s. 24(1) to formulate the remedy which is appropriate and just in the circumstances. As Martin J.A. noted at p. 104:
Patently, s. 24 can be invoked only where a right guaranteed by the Charter is alleged to have been infringed, and I accept, of course, that there cannot be a breach of a new right conferred by the Charter prior to the creation of the right. For example, s. 10(b) of the Charter provides that everyone has the right on arrest "to retain and instruct counsel without delay and to be informed of that right". The words which I have italicized confer a new right. That right could not be contravened prior to the coming into force of the Charter because the right did not exist: see R. v. Lee (1982), 142 D.L.R. (3d) 574, 1 C.C.C. (3d) 327, 30 C.R. (3d) 395 (Sask. C.A.). Where, however, there has been a breach of a right secured by the Charter it would be illogical to hold that the remedy provided by s. 24 for Charter contraventions does not apply merely because the proceeding in which the Charter right was contravened was initiated prior to the coming into force of the Charter, where the contravention occurred after the Charter came into effect.
A constitutional remedy to be fully appropriate and just may have to take into account pre‑Charter events.
Another crucial consideration will be the nature of the particular constitutional right alleged to be violated. I would agree with the statement of Borins Co. Ct. J. in R. v. Dickson and Corman (1982), 3 C.C.C. (3d) 23 at p. 29:
Indeed, it may be that the Constitution defies strict doctrinal characterization as either exclusively retroactive, retrospective or prospective legislation for, as I suggested in the preceding paragraph, different facts may produce different interpretations. The operation of the Constitution in different cases will no doubt involve quite different considerations.
Such an approach seems to me to be consistent with our general purposive approach to the interpretation of constitutional rights. Different rights and freedoms, depending on their purpose and the interests they are meant to protect, will crystallize and protect the individual at different times. Our previous decisions on the retrospective application of the Charter are consistent with an approach which pays attention to differences in the purposes of the relevant rights and freedoms. For example, procedural rights will crystallize at the time of the process: Irvine v. Canada (Restrictive Trade Practices Commissions) (1987), 34 C.C.C. (3d) 481, 41 D.L.R. (4th) 429, [1987] 1 S.C.R. 181. Rights against unreasonable searches and seizures will crystallize at the time of the search and seizure: R. v. James, [1988] 1 S.C.R. 669. Substantive guarantees that the accused receive the benefit of his or her subjective mistake of fact crystallize at the time the offence was committed: R. v. Stevens, supra. The right against the introduction of self-incriminating evidence crystallizes at the time the evidence is sought to be introduced in a proceeding even although the testimony was originally provided well before the Charter came into force: Dubois v. The Queen, [1985] 2 S.C.R. 350 (S.C.C.). [emphasis italicized in original]
(Emphasis added)
[42] In order to place Justice Wilson’s remarks in the appropriate context, it is helpful to review the factual background in Gamble. In March 1976, Ms. Gamble's accomplice killed a police officer while they were in flight from a robbery. Nine months later, November of 1976, she was convicted of first degree murder under s. 214 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 and was sentenced to life imprisonment without eligibility for parole for 25 years pursuant to s. 669(a) of the Code. Both sections had been proclaimed in force on July 26, 1976 as part of a new criminal law (Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105). On appeal, the Appellate Division of the Supreme Court of Alberta found that she should have been tried under the old provisions of the Criminal Code in force at the time of the offence. Although the Court concluded that the appellant had been prejudiced by being tried under the new provisions it held that it was prevented from granting a new trial under the old provisions because of the transitional provisions of s. 27(2) of the Criminal Law Amendment Act (No. 2), 1976. Ms. Gamble's application for leave to appeal to the Supreme Court of Canada was dismissed.
[43] Under the old punishment provisions of s. 218 Ms. Gamble would be ineligible for parole for a minimum of 10 years. The sentencing judge could make a recommendation for parole ineligibility between 10 to 20 years on a recommendation from a jury that the period of ineligibility be increased beyond 10 years and also having regard "to the character of the accused, the nature of the offence and the circumstances surrounding its commission ...". In contrast, the new provisions under which Ms. Gamble was tried and convicted provided that a person convicted of first degree murder was ineligible for parole for 25 years. In 1986, after 10 years of imprisonment in a penitentiary in Kingston, Ms. Gamble applied to the Supreme Court of Ontario for relief from her continued detention. She alleged that her continued detention pursuant to the 25 year parole ineligibility condition in her sentence violated s. 7 of the Charter and that she was entitled, under s. 24(1) of the Charter, to a declaration that she is now eligible for parole. The Supreme Court of Ontario dismissed the application and the judgment was affirmed by the Court of Appeal.
[44] On further appeal to the Supreme Court of Canada, the majority held that Ms. Gamble could challenge the constitutionality of her on-going detention in spite of the fact that her conviction was entered before the Charter was enacted. Her situation did not involve retrospective application of the Charter because her parole ineligibility was a current and continuing deprivation of the appellant’s liberty interest. The Court was satisfied that Ms. Gamble was not seeking a review of her pre‑Charter trial and sentence in light of the standards contained in the Charter. That would be impermissible retrospectivity. It was the current, ongoing operation of the parole ineligibility provision in her sentence which violated her liberty interest under s. 7 of the Charter and was, therefore, unlawful. The relevant act to which the Charter is applied was not the conviction or sentencing but the continuing execution of that part of the sentence which mandates a 25 year period of parole ineligibility.
[45] In considering whether there was a current violation of Ms. Gamble's liberty interest, it was the duty of the court to consider her Charter claim and, in the context of that claim, to consider pre‑Charter history to the extent it explained or contributed to the alleged current Charter violation. The relevant pre-Charter history was the fact that she had been convicted and sentenced under the wrong law. This fact was central to the result. Wilson, J. said at p. 630:
[45] When, as is the case here, the appellant claims a continuing current violation of her liberty interest, it is the duty of the courts to consider her Charter claim and, in the context of that claim, to consider pre‑Charter history to the extent it explains or contributes to what is alleged to be a current Charter violation. This is especially true when the pre‑Charter history is alleged to include unlawful conduct on the part of the Crown. This Court's decision in Milne not to allow a pre‑Charter conviction and sentence to be reviewed in light of subsequent changes in the law and the enactment of the Charter was made on the basis that the applicant in that case: "like any other person who is properly convicted and sentenced, he must otherwise serve his sentence according to its tenor" (p. 526, emphasis added). In the case at hand the overwhelmingly significant fact is that the applicant was not "properly convicted and sentenced". She was convicted and sentenced under the wrong law. In short this is not a case in which an applicant is trying to avoid having the law as it existed at the time of the offence applied to him or her. It is the very opposite. The appellant has not had the proper law applied to her situation, nor can she have it now.
[46] In Milne this Court rightly refused to apply "existing law" (p. 520) to a pre‑Charter conviction and sentence which was proper according to the law in force at the time of the conviction and sentence or to apply the Charter so as to vitiate a sentence valid and proper at the time it was imposed. But that is not this case. The appellant's case is that the parole ineligibility provision in her sentence violates her liberty interest under s. 7 of the Charter and that the current ongoing operation of that provision is itself unlawful. This unlawfulness is part of the pre‑Charter history, indeed a very significant part of it and has, in the appellant's submission, largely contributed to her current continuing unconstitutional detention.
(Emphasis added)
[46] Dickson, C.J.C. and Beetz, J., although dissenting in the result, agreed with the majority that s. 7 of the Charter may apply to ongoing states of affairs but that a current Charter violation cannot be based on past alleged Charter transgressions.
[47] On this issue, Dickson, C.J. C. said at pp. 607 - 608:
I agree with Wilson J. that in order to determine whether the Charter is applicable law, a court must ask whether the Charter is in force at the time at which the act or event which is alleged to infringe the Charter took place or had its effect. As this Court recently stated in R. v. Stevens, [1988] 1 S.C.R. 1153, at p. 1158, the following formulations of Tarnopolsky J.A. in R. v. James (1986), 27 C.C.C. (3d) 1, at pp. 21 and 25, aff'd [1988] 1 S.C.R. 669, are correct:
[O]ne applies the law in force at the time when the act that is alleged to be in contravention of a Charter right or freedom occurs ... [I]t is important that actions be determined by the law, including the Constitution, in effect at the time of the action.
However, this general statement does not yield a ready answer in every case as one still has to fix in time the relevant act. As demonstrated by the different conclusions of the majority and minority in Stevens, supra, this is not necessarily a straightforward task. . . .
[48] Here, there is a ready answer. The time of the relevant act was the date on which a claimant remarried. In every case, it occurred pre-Charter. That is when these claimants were impacted by the termination provisions. To revisit the termination of the survivors pensions, post-Charter, would be an impermissible, retrospective application of the Charter.
[49] The claimants have wrongly interpreted Justice Wilson's remarks as a licence to reach back and invalidate events which took place before the advent of the Charter. This argument is premised on the presumption that the termination of the pensions was “unlawful” like Ms. Gamble's conviction and sentence. As I have already said, the termination was not unlawful.
[50] The fact that the claimants' pensions were not revived on April 17, 1985 is not analogous to Ms. Gamble's ongoing detention pursuant to a wrongful conviction. Their pensions were not denied post-1985 because they continued “to be remarried”. That they did not receive pensions post-Charter was not the ongoing effect of an unlawful act. Their pensions were terminated upon the event of remarriage pre-Charter. As I have already said, it was not the continuing status of being remarried that prevented the claimants from receiving pensions. The claimants' position is analogous to that of the appellant in R. v. Milne, [1987] 2 S.C.R. 512 referred to by Wilson, J. at § 45 above.
[51] Having found that the relief sought by the claimants in relation to the termination provisions would result in an impermissible retrospective application of the Charter, it is unnecessary to conduct a s. 15 analysis with respect to ss. 76 and 61.
The Reinstatement Provision:
(a) Retrospectivity
[52] Below I will analyse s. 60A pursuant to s. 15 of the Charter. In my view, however, the question of the constitutionality of that provision can also be resolved through the application of the principles of retrospectivity. To find that this amendment required the reinstatement of pensions for the pre-Charter widows would result in an impermissible retrospective application of the Charter. It would result in attaching new consequences to an event which took place before s. 15 of the Charter was enacted.
[53] In Boudreau v. New Brunswick (2000), 186 D.L.R. (4th) 570 (Q.B.) several pre-Charter widows challenged the constitutionality of comparable reinstatement legislation in relation to that province's Workers' Compensation Act, R.S.N.B. 1973, c. W-13. Garnett, J. concluded that the result sought by the plaintiffs would require a retrospective application of the Charter and denied relief. She said at p. 576:
The Plaintiffs were granted pensions under Workers Compensation legislation. The same legislation mandated that their remarriage would result in a cessation of those pensions. All of the relevant events (the granting of the pension, the remarriage and the cessation of the pension) occurred before the coming into force of Section 15 of the Charter. The rights of the Plaintiffs were determined at the time of their remarriage by legislation which was valid. If I were to apply Section 12 (the 1998 amendment) [the reinstatement provision] in such a way as to attach a new duty (the obligation to reinstate the pension) to past events (remarriage and cessation of pensions) on the basis of the Charter, I would be applying the Charter retrospectively.
(b) s. 15(1) of the Charter:
[54] The 1999 amendment to the Workers’ Compensation Act reinstated pensions for those widows disentitled by the operation of the termination provisions after s. 15(1) of the Charter came into effect and before 1992 when the provision was repealed. These are the post-Charter widows. Pensions for the claimants were reinstated effective January 1, 1999. The impugned amendment provided, in part:
60A (1) In this Section, “former Act”, means Chapter 508 of the Revised Statutes, 1989, as it read from time to time before the coming into force of this Section.
(2) This Section applies to a dependent spouse whose survivor benefits under the former Act were, before October 1, 1992, discontinued on remarriage pursuant to Section 61 of the former Act.
(3) A dependent spouse may apply to the Board to have survivor benefits reinstated pursuant to this Section and the Board may reinstate the benefits.
. . .
(6) No benefits shall be reinstated pursuant to this Section for a period of time
(a) before January 1, 1999, for a dependent spouse whose survivor benefits under the former Act were discontinued before April 17, 1985;
or
(b) before the later of April 17, 1985, and the date the survivor benefits were discontinued under the former Act for a dependent spouse whose survivor benefits under the former Act were discontinued on or after April 17, 1985, and before October 1, 1992. . .
(Emphasis added)
[55] The legislature did not intend this amendment to operate retroactively in relation to the claimants. The claimants say, however, that insofar as the amendment did not reinstate their pensions from April 17, 1985, it contravened the equality section of the Charter. This submission is best considered in the context of the decision by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
[56] Section 15(1) of the Charter of Rights and Freedoms states:
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[57] Section 15 was recognized by Iacobucci, J. in Law as the Charter's “most conceptually difficult provision”. The principle which informs the s. 15(1) analysis is the “purpose” of the equality guarantee. As to that purpose, Iacobucci, J. said:
[51] . . . the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society.
[58] Law postulates a three step analysis of a s. 15(1) claim (at § 88) which approach was summarized by Cromwell, J.A. for this Court in Martin v. Nova Scotia (Workers' Compensation Board) (2000), 192 D.L.R. (4th) 611:
[199] A claim that an individual's s. 15(1) rights have been limited is to be evaluated in light of three broad inquiries. These three broad inquiries do not constitute a strict test but rather serve as points of reference for the analysis. The three inquiries are these. First, does the challenged law impose differential treatment between the claimant and others? Second, if so, is this differential treatment based on one or more enumerated or analogous grounds, i.e., on the basis of grounds specifically prohibited by the Charter (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) or similar to them? Third, is the scheme discriminatory in the sense that it conflicts with the fundamental purpose of s. 15(1)(see, for example, Lovelace v. Ontario, [2000] S.C.J. No. 36 (Q.L.) at para. 53 [reported 188 D.L.R. (4th) 193]). The answer to the first question identifies differential treatment. The answers to the second and third questions identify whether the differential treatment is discriminatory.
[59] The first task in the equality analysis is selecting the appropriate comparator group. Equality is a comparative concept. Each of the three inquiries requires comparison between the claimants and another relevant group (or groups). (Martin at § 202)
[60] As to the choice of comparator group, Cromwell, J.A. said:
[205] Claimants are given "considerable scope" to identify the appropriate group for comparison, but their choice is not unfettered. There must be an appropriate relationship between the selected comparator group and the benefit which is the subject of the complaint, having regard to the subject matter, the purpose and the effect of the legislation in issue: see Granovsky, supra at paras. 47 ‑ 48.
[61] The claimants say that the appropriate comparator group for the purposes of this challenge is those widows who did not remarry and thus did not have their pensions terminated. I do not accept that choice. The suggested comparator group might be appropriate in the context of a s. 15 challenge to the termination provisions (ss. 76 and 61). Those provisions differentiated between remarried widows and those who did not remarry. To accept that comparator group, however, would be to permit a collateral challenge to the termination provisions. It would improperly circumvent the issue of retrospectivity discussed above. In addition, the constitutionality of the termination provisions post-Charter is irrelevant to the position of these claimants.
[62] As was recognized in Law (at § 58) and more recently in Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 “[i]t may be that the differential treatment is not between the groups identified by the claimant ...” (per Binnie J. at § 46).
[63] Both the purpose and the effect of the legislation must be considered in determining the appropriate group for comparison (Law at § 57). The purpose of the reinstatement provision is to restore pensions to widows who lost them upon remarriage. The benefit sought by the claimants is the reinstatement of pensions back to April 17, 1985 or the date of remarriage, whichever is later. That benefit accrues only to the post-Charter widows. The groups affected by s. 60A are the claimants and the post-Charter widows. It is the post-Charter widows relative to which a distinction is drawn by s. 60A. In my view, this is the appropriate comparator group: see Granovsky at § 49 and 50
(i) Differential Treatment:
[64] I am satisfied that the claimants are denied equal benefit of the reinstatement provision. The effect of the impugned provision is to leave in place the pre-Charter termination of the claimants' pensions. They are denied reinstatement of the pensions retroactive to April 17, 1985 on the basis that their pensions were terminated before, not after, the operation of s. 15(1) of the Charter. Although not articulated as such, the claimants, in effect, say that s. 60A is underinclusive.
(ii) A Distinction Based Upon an Enumerated or Analogous Ground:
[65] The distinction in s. 60A between the two groups is based upon the date of remarriage. Both comparator groups are widows who remarried. The fact that they are both members of the same group (remarried widows) does not in itself preclude the finding of discrimination (see Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 and Martin, supra). However, the distinction, even if drawn within the same group, must be on an enumerated or analogous ground. Here it is not. The trial judge erred when she accepted the claimants' submission that the distinction is based upon the analogous ground of “marital status”. The distinction here is temporal, that is, based upon the date of remarriage. The inquiry ends at this point. Discrimination can only occur where the differential treatment is based upon an enumerated or analogous ground. It is unnecessary to proceed to the third step of the equality analysis.
[66] I have found that the distinction is not based upon marital status. I, therefore, need not decide whether, in the context of this case, “marital status” would be an analogous ground. As Wilson, J. recognized in R. v. Turpin, [1989] 1 S.C.R. 1296, the question of whether a status or characteristic is an analogous ground is dependent, in part, upon the context of the case. In Miron v. Trudel, [1995] 2 S.C.R. 418, where marital status was accepted as an analogous ground, the Court's focus was upon the disadvantages suffered by persons in unmarried relationships, and the denial of a benefit to such persons. In concluding that marital status was an analogous ground McLachlin, J. discussed the plight of unmarried persons:
[152] . . . marital status possesses characteristics often associated with recognized grounds of discrimination under s. 15(1) of the Charter. Persons involved in an unmarried relationship constitute an historically disadvantaged group. There is ample evidence that unmarried partners have often suffered social disadvantage and prejudice. Historically in our society, the unmarried partner has been regarded as less worthy than the married partner. The disadvantages inflicted on the unmarried partner have ranged from social ostracism through denial of status and benefits. In recent years, the disadvantage experienced by persons living in illegitimate relationships has greatly diminished. Those living together out of wedlock no longer are made to carry the scarlet letter. Nevertheless, the historical disadvantage associated with this group cannot be denied.
[153] A third characteristic sometimes associated with analogous grounds — distinctions founded on personal, immutable characteristics — is present, albeit in attenuated form. In theory, the individual is free to choose whether to marry or not to marry. In practice, however, the reality may be otherwise. The sanction of the union by the state through civil marriage cannot always be obtained. The law; the reluctance of one's partner to marry; financial, religious or social constraints — these factors and others commonly function to prevent partners who otherwise operate as a family unit from formally marrying. In short, marital status often lies beyond the individual's effective control. In this respect, marital status is not unlike citizenship, recognized as an analogous ground in Andrews: the individual exercises limited but not exclusive control over the designation.
(Emphasis added)
[67] It was thus the state of being unmarried that was the essence of “marital status” as an analogous ground:
[150] What then of the analogous ground proposed in this case — marital status? The question is whether the characteristic of being unmarried — of not having contracted a marriage in a manner recognized by the state — constitutes a ground of discrimination within the ambit of s. 15(1). In my view, it does.
[68] In Miron, marriage was accepted to be a state‑sponsored institution that confers real economic benefits on its participants, as well as social status, recognition and acceptance. It was individuals living in common-law relationships who were found to be subject to prejudice and social disapproval. The survivors pensions here were terminated upon the marriage of the recipient. Those pensions were paid without regard to need. Implicit in the awarding of these pensions was a presumption of spousal dependency or, at least, the assumption that a household with potential for two incomes is better situated than that with one. Age and actual dependency were irrelevant factors. The reason for terminating the pension aligned exactly with that for its provision. In these circumstances, without further analysis, it is impossible to say whether marital status, even if relevant here, would constitute an analogous ground.
(iii) Discrimination:
[69] Had I found that the differential treatment was based upon marital status and that marital status was, in these circumstances, an analogous ground, I am not satisfied that the impugned legislation is discriminatory in the sense that it conflicts with the fundamental purpose of s. 15(1).
[70] The claimants must establish “discrimination in a substantive or purposive sense, beyond mere proof of a distinction on enumerated or analogous grounds”. (per Iacobucci, J. in Law, supra, at § 38)
[71] What is discriminatory treatment? Iacobucci, J. acknowledged that state action corroborating or exacerbating an existing prejudicial stereotype, while a hallmark of discrimination, is not essential to a successful claim under s. 15(1):
[64] . . . A stereotype may be described as a misconception whereby a person or, more often, a group is unfairly portrayed as possessing undesirable traits, or traits which the group, or at least some of its members, do not possess. In my view, probably the most prevalent reason that a given legislative provision may be found to infringe s. 15(1) is that it reflects and reinforces existing inaccurate understandings of the merits, capabilities and worth of a particular person or group within Canadian society, resulting in further stigmatization of that person or the members of the group or otherwise in their unfair treatment. This view accords with the emphasis placed by this Court ever since Andrews, supra, upon the role of s. 15(1) in overcoming prejudicial stereotypes in society. However, proof of the existence of a stereotype in society regarding a particular person or group is not an indispensable element of a successful claim under s. 15(1). Such a restriction would unduly constrain discrimination analysis, when there is more than one way to demonstrate a violation of human dignity. I emphasize, then, that any demonstration by a claimant that a legislative provision or other state action has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society (whether or not it involves a demonstration that the provision or other state action corroborates or exacerbates an existing prejudicial stereotype), will suffice to establish an infringement of s. 15(1).
(Emphasis added)
[72] Discrimination has, at its root, prejudice, stereotyping or devaluation of the group or individual in society's eyes. In assessing the claim:
[60] . . . a court must be satisfied that the claimant’s assertion that differential treatment imposed by legislation demeans his or her dignity is supported by an objective assessment of the situation. All of that individual's or that group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity. (Law, supra)
(Emphasis added)
[73] In Law, the 30‑year‑old appellant was denied survivors benefits under the Canadian Pension Plan (CPP). The CPP gradually reduces the survivors pension for able‑bodied surviving spouses without dependent children who are between the ages of 35 and 45 so that the threshold age to receive benefits is age 35. The appellant unsuccessfully appealed first to the Minister of National Health and Welfare and then to the Pension Plan Review Tribunal, arguing that the law discriminated against her on the basis of age contrary to s. 15(1) of the Charter. A further appeal was made to the Pension Appeals Board, which, in a trial de novo, concluded that the impugned age distinctions did not violate the appellant's equality rights. The majority of the Board also found that, even if the distinctions did infringe s. 15(1) of the Charter, they could be justified under s. 1. A subsequent appeal to the Federal Court of Appeal was dismissed. A final appeal to the Supreme Court of Canada was dismissed. A unanimous Court found that neither the purpose nor the effect of the impugned CPP provisions violated the appellant's dignity so as to constitute discrimination within s. 15(1).
[74] In discussing the concept of “dignity” Iacobucci, J, asked the following questions:
[99] . . . Do the impugned CPP provisions, in purpose or effect, violate essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice? Does the law, in purpose or effect, conform to a society in which all persons enjoy equal recognition as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect, and consideration? Does the law, in purpose or effect, perpetuate the view that people under 45 are less capable or less worthy of recognition or value as human beings or as members of Canadian society?
[75] Notwithstanding Ms. Law's sincere assertion that her dignity had suffered, the Court held that denial of the spousal pension on the basis of age - an express denial of a benefit on an enumerated ground:
[107] . . . does not reflect a view of the appellant that suggests she is undeserving or less worthy as a person, only that the distribution of the benefit to her will be delayed until she is at a different point in her life cycle, when she reaches retirement age.
[108] In these circumstances, recalling the purposes of s. 15(1), I am at a loss to locate any violation of human dignity. The impugned distinctions in the present case do not stigmatize young persons, nor can they be said to perpetuate the view that surviving spouses under age 45 are less deserving of concern, respect or consideration than any others. Nor do they withhold a government benefit on the basis of stereotypical assumptions about the demographic group of which the appellant happens to be a member. I must conclude that, when considered in the social, political, and legal context of the claim, the age distinctions in ss. 44(1)(d) and 58 of the CPP are not discriminatory.
[76] In Granovsky, supra, the appellant claimed to have suffered an intermittent and degenerative back injury following a work‑related accident in 1980. He was assessed to be temporarily totally disabled at that time. Prior to his accident, he had made Canada Pension Plan (CPP) contributions in six of the ten previous years. The appellant maintained that his back condition continued to deteriorate and that the disability became permanent in 1993, at which time he applied for a CPP disability pension. His application was refused in part because he had only made a CPP contribution in one year of the relevant CPP 10‑year contribution period prior to the date of application and thus had an insufficiently recent connection to the work force. He could not bring himself within the "drop‑out" provision (made available to applicants who suffered from severe and permanent disabilities) under which periods of disability are not counted in the recency of contribution calculation. He alleged that the drop-out provision of the CPP infringed s. 15(1) of the Charter because the contributions requirement fails to take into account the fact that persons with temporary disabilities may not be able to make contributions for the minimum qualifying period because they are physically unable to work.
[77] The Court accepted that the denial of the benefit was a differentiation on the enumerated ground of disability. In deciding whether the denial of the benefit discriminated against the appellant, Binnie, J. framed the following question:
[58] The question therefore is not just whether the appellant has suffered the deprivation of a financial benefit, which he has, but whether the deprivation promotes the view that persons with temporary disabilities are "less capable, or less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration" (emphasis added). In Miron v. Trudel, [1995] 2 S.C.R. 418, McLachlin J. noted, at para. 132, that "distinctions made on enumerated or analogous grounds may prove to be, upon examination, non‑discriminatory".
[78] The Court found that the “drop-out” provision “does not engage the larger human rights purpose of s. 15(1) of the Charter ...” (at § 82).
[79] In view of my finding that the differentiation was not on an analogous ground I have not conducted a thorough analysis of this third branch. I am not satisfied, however, that s. 60A functioned by “device of stereotype” to deny the retroactive benefit to the claimants (Law, supra at §102; see also Lovelace v. Ontario, [2000] 1 S.C.R. 950 at § 73). The pre-Charter widows were excluded from retroactive reinstatement, not due to stereotypical application of presumed group characteristics, but because their survivors pensions had been lawfully terminated before the Charter. I cannot conclude that s. 60A, in not reinstating the pensions, demeans their dignity in the manner required by s. 15. Accordingly, the claimants would not meet the third branch of the Law analysis.
[80] In these circumstances it is not necessary to consider whether the impugned provisions are saved under s. 1 of the Charter. The claimants have not demonstrated that s. 60A of the Workers’ Compensation Act is unconstitutional.
The Repeal Provision:
[81] At trial the claimants also successfully challenged the 1992 amendment which repealed the termination provision then in effect (s. 61 of the Workers’ Compensation Act, R.S.N.S. 1989, c. 508).
[82] In this regard, the claimants' submission is two-fold: (i) that by failing to make the repeal of the termination provisions retroactive to the date of the Charter the legislation violated s. 15; or (ii) that the government was obliged, in conjunction with repealing s. 61, to reinstate pensions for the pre-Charter widows. This latter proposition cannot succeed as it would result in an illegitimate retrospective application of the Charter, as discussed above. The first submission is not relevant to the claimants' situation. As already discussed, they would be in no different circumstances had the termination provisions been repealed on April 17, 1985. Their pensions had been terminated and the repeal of s. 61 would not revive them. This argument might have been advanced by the widows whose pensions were terminated between 1985 and 1992. However, those pensions have since been restored retroactively through the 1999 amendment.
THE DECISION OF THE TRIAL JUDGE:
[83] The Province submits that the alleged errors in the trial decision arise because the judge failed to adequately consider the application of retrospectivity to the impugned provisions and, additionally, did not properly apply the s. 15(1) Charter analysis, informed by the principles developed in Law. They say that she intermingled the equality and retrospectivity analyses. I would agree. This has led to reversible error.
[84] On the question of retrospectivity the trial judge, although referring to the decision of the Supreme Court in Benner, concluded:
[36] In looking at the factual context of this case, I find that this all or nothing approach which creates the divide between pre‑Charter and post‑Charter widows who remarry and between the widows who remarried and those who did not, to be an artificial distinction that offends the very nature of the constitutional rights and freedoms that were made law to protect individuals from such inequitable treatment.
(Emphasis added)
[85] As is evident from the analysis in Benner, the distinction between pre-Charter and post-Charter events is central to the retrospectivity analysis. It is not an “artificial distinction”.
[86] Continuing on the topic of retrospectivity she said:
[37] The discrimination in this case was triggered by the discrete event of remarriage. But, long after the event and post‑Charter, these women suffered an ongoing condition; the status of women once entitled to benefits but cut off from these benefits, that their husbands had paid for, first with their invested labour and then with their lives. Such a rigid test is inapplicable in these circumstances. The law perpetuated the prohibited discrimination long after the Charter intended its cure.
[38] Even women who lost their husbands after 1985 and remarried before 1992 the date when the offending section of the Act was repealed, became disentitled to benefits and were cut‑off by the Act. Indeed, one of the plaintiffs who was then widowed again reapplied for benefits after 1985 and was refused. The discrimination perpetuated by the Act was ongoing long after 1985 just as the plaintiffs' status as widows entitled to benefits was ongoing.
(Emphasis added)
[87] The trial judge appears to have accepted, at this point in her decision, that the termination of the claimants' pensions was discriminatory. Not only is this not relevant to the issue of retrospectivity, she had not conducted the analysis directed in Law, nor any alternative analysis, in order to determine whether any or all of the impugned sections contravened the equality section. The termination of pensions before April 17, 1985 was not “discriminatory” (see § 29 above). The widows who lost their pensions between1985 and 1992 through the continuing operation of s. 61, were not among the claimants. Whether the termination of their pensions offended s. 15(1) and was therefore “discriminatory” was not before the judge and not relevant to an assessment of the position of the claimants.
[88] The judge further erred in assuming, without exploring the law on retrospectivity, that there was an obligation on the government to restore the pre-Charter pensions, with the coming into effect of s. 15 of the Charter. She said:
[39] In essence, the entitlement to benefits was a right in futuro to receive monthly support for the balance of their natural lives. With the commencement of the Charter era, they could rightly have the expectation that this benefit would be immediately restored.
(Emphasis added)
[89] The issue of retrospectivity was central to the Province’s defence of the claim. It was the significant question before the trial judge. As I have discussed, had she conducted the analysis she would have concluded that to impose such an obligation would result in an impermissible, retrospective operation of the Charter. This critical error is reflected in her further remarks:
[40] When each of the plaintiffs first became a widow they were immediately entitled to the survivor's benefit. This provided them with some immediate security to meet the very practical needs of their lives, yet the entitlement also provided some future security in the knowledge they would receive this monthly cheque for the balance of their lives, a right that had accrued and was revived in a post‑Charter age.
[41] It is this security into the future that is the essence of the Workers' Compensation legislation for all workers those injured and deceased, and the very reason that the programme was established in 1915. It is this right to future security that is protected and restored in a post‑Charter age.
[42] These women suffered great loss. Their loss was not merely economic. They were left, many at a very young age widowed with infant children, in very tragic circumstances. Each plaintiff has a compelling story to tell. These are stories of death and hardship. Their husbands were killed at work in the mines, at sea, on the roads, on construction sites, or in other work places in Nova Scotia.
(Emphasis added)
[90] Above, the judge refers to both the purpose and effect of the impugned provisions in concluding that the claimants had a right to restoration of their pensions. Neither the purpose nor the effect of the impugned legislation is relevant to the question of retrospectivity. These factors are considered within the s. 15(1) analysis. This is further evidence of the judge's failure to separate the two inquiries, which led her into error.
[91] In finding that the various provisions of the Workers' Compensation Act(s) contravened s. 15(1) of the Charter, the trial judge accepted the reasoning in Grigg v. British Columbia (1996), 138 D.L.R. 4th 548 (B.C.S.C.). With respect, Grigg was wrongly decided.
[92] At issue in Grigg was the constitutionality of s. 19 of the Workers’ Compensation Act, R.S.B.C. 1979, c. 437, as amended S.B.C. 1993, c.34, s. 5 (“the reinstatement provision”). Section 19, both repealed the termination provision and reinstated survivors pensions’ for widows who had lost them through remarriage post-Charter. It is the equivalent of a combination of s. 60A of the Nova Scotia Workers' Compensation Act and the 1992 repeal provision. The applicants in Grigg were, as here, pre-Charter widows whose survivors pensions had been terminated on remarriage. There was no challenge in Grigg to the termination provisions. Hutchison, J. found that the section was unconstitutional pursuant to s. 15 of the Charter.
[93] Grigg pre-dated the decisions by the Supreme Court of Canada in Benner and Law. In Grigg, Hutchison, J. erred by failing to properly apply to the impugned provision the principles of retrospectivity and equality. Fundamental to his conclusion that s. 19 contravened the Charter in that it discriminated on the basis of marital status was his acceptance (at § 60) of the reasons of the Nova Scotia Human Rights Tribunal in O'Quinn v. Nova Scotia (Workers’ Compensation Board), [1996] N.S.H.R.B.I.D. No. 4. That decision was subsequently reversed by this Court (Nova Scotia (Workers' Compensation Board) v. O'Quinn (1997), 157 N.S.R. (2d) 282).
[94] It is helpful to understand the issue which arose in O'Quinn. Mrs. O'Quinn had been in receipt of a survivors pension which had terminated, in accordance with s. 61 of the Act, upon her remarriage in 1986. In 1991 the Human Rights Act, R.S.N.S. 1989, c. 214 was amended to prohibit discrimination on the basis of marital status (S.N.S. 1991, c. 12). On April 20th, 1992, Mrs. O'Quinn and her husband were divorced. In 1993, which was after the repeal of the termination provisions, Mrs. O'Quinn requested that her case be re-opened pursuant to s. 70 of the Workers' Compensation Act in order to reinstate her survivors pension. That section provided:
70 The Board may reopen, rehear, redetermine, review or readjust any claim, decision or adjustment, including any finding or decision of a medical review board made between the twelfth day of April, 1957, and the thirteenth day of April, 1962, either because an injury has proven more serious or less serious than it was deemed to be, or because new evidence relating to such claim, decision or adjustment has been presented to it, or because a change has occurred in the condition of a worker or in the number, circumstances or condition of dependants or otherwise.
[95] The Board held that s. 70 did not apply to Mrs. O'Quinn's circumstances and refused to re-open the claim. On September 2, 1994 Mrs. O'Quinn filed a complaint against the Workers' Compensation Board with the Nova Scotia Human Rights Commission. She alleged that in refusing to re-open the claim pursuant to s. 70 the Board discriminated against her on the basis of marital status, contrary to s. 5(1)(a) of the Human Rights Act. The tribunal agreed and ordered the Workers’ Compensation Board, inter alia, to consider Mrs. O'Quinn's claim for reinstatement. On appeal, this Court unanimously found that s. 70, properly interpreted, did not permit the re-opening of Mrs. O'Quinn's claim on account of her divorce.
[96] In reaching its decision, the tribunal concluded that the repeal of the termination provisions of the Workers’ Compensation Act discriminated on the basis of marital status contrary to the Human Rights Act. It was this aspect of the tribunal's decision which Hutchison, J. endorsed in Grigg. The decision in O'Quinn contained several errors:
- The tribunal erred in failing to consider the issue of retrospectivity in relation to the repeal of s. 61 of the Workers’ Compensation Act. (see O'Quinn on appeal at § 42)
- The tribunal accepted as correct the decision of the Ontario Workers Compensation Tribunal, Decision No. 190/191, (1992) 22 W.C.A.T.R. 109. That tribunal had concluded that the Ontario termination provision, which provided that survivors pensions “shall cease upon remarriage” was ambiguous and thus permitted the re-opening of a claim when the marriage terminated. As a matter of statutory interpretation this is clearly wrong.
- The tribunal found there was no evidence that the distinction created by the repeal of s. 61between those who married before or after 1992 was intended by the legislature. (see O'Quinn on appeal at § 25 and § 42)
- The tribunal concluded that discrimination on the basis of “marital status” extended beyond the state of being married to include the timing of the marriage.
[97] The importance of the decision in O'Quinn to the result in Grigg is clear from the comments of Hutchison, J. set out below. He said:
[59] While unfair, the distinction excluding the plaintiff is arguably not one based on her marital status. In other words, it is not that the plaintiff and her class remarried which has denied her reinstatement of a pension, as there are many others, male and female who are remarried and who receive survivors' pensions. The fact that there exists a group of widowed women who remarried but were not reinstated and a group of widowed women who remarried but were reinstated arguably does not disclose a distinction drawn by the legislature on the basis of marital status. . . .
(Emphasis added)
[98] Having found that the distinction was not based upon marital status but the date of remarriage, Hutchison, J. had answered, in the negative, the second stage of the Law inquiry. There was no contravention of s. 15(1). He continued, however, and wrongly accepted, that there was discrimination on the basis of marital status (at § 60), adopting the reasons in O'Quinn.
[99] He erred, as well, in his analysis of the retrospectivity issue. Although acknowledging that s. 15 could only have prospective application, he again relied upon O'Quinn in concluding that the relief sought would not result in an impermissible retrospective application of the Charter:
[73] Furthermore, according to Murray, (supra) at p. 619, if the primary focus of an impugned provision which creates the alleged discrimination is on the event giving rise to the ongoing condition, and that event predates the Charter, application of the Charter would be retrospective and relief would not be available. Therefore a date in a statutory provision, such as "prior to April 17 1985" in the impugned s. 19, can, I concede, be argued to be an events‑based provision. I prefer the approach taken in O'Quinn v. Nova Scotia Human Rights Commission (supra).
(emphasis added)
[100] The decision in O'Quinn could not be of assistance on this issue. As was found by Hallett, J.A. there was no proper consideration of retrospectivity in O'Quinn.
[101] Thus, the judge in Grigg was in error both on his analysis pursuant to s.15 of the Charter and on the issue of retrospectivity. In adopting his reasoning Justice Roberston erred in similar fashion.
[102] In Stinson Estate v. British Columbia (1999), 182 D.L.R. (4th) 407, (application for leave to appeal to SCC dismissed [2000] S.C.C.A. 169 (Q.L.)), it was determined that the order for retroactive benefits awarded in Grigg applied only to widows who were alive on the date that the action was commenced, that is the 16th of March, 1995. Mrs. Stinson, a widow who would have otherwise qualified for benefits under the terms of the Grigg order, died on the 5th of January, 1995, two months before the action in Grigg, supra was commenced. It was determined that the appeal could not proceed as the estate did not have sufficient standing to pursue an action on behalf of the deceased for breach of s. 15(1). The Court held that the s. 15(1) equality rights are of a personal nature and terminate upon death. Chief Justice MacEachern, in concurring reasons, expressed “serious reservations about the correctness of the decision” in Grigg. At § 19 - 20 he stated:
. . .The reason for my concern about that case is that the plaintiff, and the deceased in this case, remarried before section 15 of the Charter came into force. I doubt if that section should be given retrospective application to revive rights and obligations that had been settled by legislation that was valid when section 15 came into force.
As this appeal may properly be decided on the grounds stated by Mr. Justice Finch, I do not think it necessary to give full consideration to the other problem I have described. However, I would not wish this appeal to be concluded without at least mentioning my concern about the correctness of the decision in Grigg.
[103] Although the Chief Justice's comments are clearly obiter dicta, they conform to my view that Grigg was wrongly decided.
SUMMARY:
[104] The trial judge erred in concluding that the relief sought by the claimants would not result in an impermissible, retrospective application of the Charter. She further erred in concluding that the repeal and reinstatement provisions were unconstitutional.
DISPOSITION:
[105] The appeal is allowed. The Order of the Supreme Court is set aside which, for clarity, would include the order as to costs. There shall be no costs on the appeal.
Bateman, J.A.
Concurred in:
Glube, C.J.N.S.
Oland, J.A.