Spousal Benefits
   
The termination of survivorship benefits on remarriage occurring prior to the coming into force of section 15 of the Canadian Charter of Rights and Freedoms was the subject of an equality rights challenge before the Nova Scotia Court of Appeal.²⁸³ The case was brought by a group of 62 widows who were awarded survivor pensions under then existing provisions in the provincial Workers’ Compensation Act ²⁸⁴following the work-related deaths of their husbands, but lost them (prior to April 17, 1985) when they remarried. The rule regarding termination of a Awidow's@ pension upon remarriage was repealed by the provincial legislature in 1992, but it was not until 1999 that the government moved to reinstate survivor pensions where they had been terminated after April 17, 1985, the date section 15 of the Charter had come into effect. Pensions that had been terminated after that date were reinstated retroactively to the moment when they were lost. The legislative amendments introduced at that time also provided for the reinstatement of pensions that had been terminated prior to the coming into force of section 15 of the Charter, but effective only as of January 1, 1999. It was this difference in treatment between Apost-Charter@ and Apre-Charter" widows that allegedly offended the equality guarantees in section 15.

In overturning the trial court's decision in favour of the plaintiffs, the Court of Appeal stressed the importance of separating any analysis of the rule against retrospective application of the Charter from the substantive analysis of equality guarantees. The Court pointed out that clearly the Charter cannot apply to past legislation that no longer exists. It therefore underscored that A[t]he Aconstitutionality@ of the termination provisions pre-Charter is not in issue...They were not unconstitutional nor unlawful prior to 1985. The termination of pensions was not Adiscriminatory@ within the meaning of section 15 of the Charter at any point prior to April 17, 1985. It is misleading to suggest otherwise.²⁸⁵@ In this sense, the equality provisions of section 15 could not be used to revive the payment of survivor pensions in the pre-Charter era. The real issue concerned the allegedly on-going, status-based consequences that resulted from the operation of past law. It was for this reason that the plaintiffs had asked that their pensions be revived only as of April 17, 1985. In their view (accepted by the trial judge), they were asking only that the Charter be applied prospectively so as to invalidate the on-going, status-based denial of a survivor pension.

The distinction between a discrete pre-Charter event (to which the Charter cannot be retrospectively applied) and an on-going condition or state of affairs is not always clear. The Court of Appeal referred extensively to a previous Supreme Court decision ("Benner"²⁸⁶) that endorsed and applied this distinction in circumstances where repealed legislation had conditioned a grant of citizenship on the gender of the birth parents. Though repealed, the discriminatory effect of this legislation had been carried forward in successor statutes so that a person applying for citizenship in the post-Charter era was still affected. That being the case, the Supreme Court granted Charter relief to a plaintiff whose post-Charter application for citizenship had been denied due to discriminatory distinctions rooted in past law that still created current, on-going problems of status or condition. In so doing, the Supreme Court observed:

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?

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 Adetainee@. 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.²⁸⁷

In the instant case, the Court of Appeal could see no post-Charter continuing operation of the termination rule regarding Awidow's@ survivor pensions. In contrast to the situation in Benner, the claimants here were not Anew applicants@ in the post-Charter era who were affected by the discriminatory impact of past law. Rather, the most significant feature of their case were the dates (all pre-Charter) on which each claimant had remarried. AIt 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...[W]hile 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.@²⁸⁸

Having found that section 15 of the Charter can not apply retrospectively to the decisions made to terminate the claimants' survivor pensions,²⁸⁹ the Court of Appeal then turned to the reinstatement provisions found in the 1999 legislative amendments. Here it was clear that a distinction had been made that denied a benefit to the claimants. In assessing its possible discriminatory impact, the Court of Appeal first identified the comparator group with which the complainants should be compared. It rejected the submission that the proper comparator group chosen by the claimants should be all widows who did not remarry. It found that A[t]he suggested comparator group might be appropriate in the context of a section 15 challenge to the termination provisions...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.²⁹⁰@ It found instead that the correct comparator group was that composed of the post-Charter widows. Both they and the claimants were the ones affected by the legislation and related to its purpose, which was to restore pensions to widows who had lost them upon remarriage.

The only material difference between the claimants and the comparator group was the date of remarriage, as they all were widows who had eventually remarried. The Court of Appeal found that the trial level judge had erred in concluding that the claimants had been discriminated against on the basis of marital status. The basis for distinguishing the claimants was strictly temporal, i.e. based on the date of remarriage. The Court rejected any notion that this type of distinction could amount to an enumerated or analogous ground of prohibited discrimination. As a result, the failure to reinstate pensions effective from April 17, 1985 to the claimants, whose remarriage and loss of original survivor pension occurred prior to that date, did not conflict with equality rights under section 15 of the Charter.

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End Notes