WCB v. Martin (2003), 217 N.S.R.(2d) 301 (SCC);
683 A.P.R. 301
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
………………..
Temp. Cite: [2003] N.S.R.(2d) TBEd. OC.012
Donald Martin (appellant) v. Workers’ Compensation Board of Nova Scotia and Attorney General of Nova Scotia (respondents) and Nova Scotia Workers’ Compensation Appeals Tribunal, Ontario Network of Injured Workers Groups, Canadian Labour Congress, Attorney General of Ontario, Attorney General of British Columbia and Workers’ Compensation Board of Alberta (intervenors)
(28372)
Ruth A. Laseur (appellant) v. Workers’ Compensation Board of Nova Scotia and Attorney General of Nova Scotia (respondents) and Nova Scotia Workers’ Compensation Appeals Tribunal, Ontario Network of Injured Workers Groups, Canadian Labour Congress, Attorney General of Ontario, Attorney General of British Columbia and Workers’ Compensation Board of Alberta (intervenors)
(28370; 2003 SCC 54; 2003 CSC 54)
Indexed As: Workers’ Compensation Board (N.S.) v. Martin et al.
Supreme Court of Canada
McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
October 3, 2003.
Summary:
In 1999, amendments to the Workers’ Compensation Act gave statutory effect to the Functional Restoration (Multi-Faceted Pain Services) Program Regulations which limited benefits to injured workers with chronic pain. Two injured workers (Martin and Laseur) with chronic pain were denied benefits. They appealed. The Workers’ Compensation Appeals Tribunal allowed the appeals. The Tribunal ruled that the amended provisions discriminated against injured workers with chronic pain contrary to s. 15 of the Charter. Martin was awarded temporary income-replacement benefits. Laseur was held not to be entitled to a permanent impairment benefit or vocational rehabilitation benefits even if the chronic pain provisions did not apply, because she was assessed a zero impairment rating under the PMI Guidelines based on a lack of objective findings. The Workers’ Compensation Board appealed the Tribunal’s jurisdiction to determine the constitutionality of the provisions. Both Martin and Laseur cross-appealed the limitation and denial of benefits.
The Nova Scotia Court of Appeal, in a judgment reported (2000), 188 N.S.R.(2d) 330; 587 A.P.R. 330, allowed the appeals. The Tribunal did not have jurisdiction to refuse to enforce provisions of the Act on the ground that the provisions violated the Charter. The Tribunal’s jurisdiction was limited to an independent and prompt review of the Workers’ Compensation Board’s application of the Act, and did not extend to determining whether the provisions were constitutional. In any event, the challenged provisions did not violate s. 15 of the Charter. It was unnecessary to determine the cross-appeals. However, the court would have dismissed Laseur’s cross-appeal and stated that apart from the challenged provisions Laseur was not entitled under the Act to permanent medical impairment benefits. The injured workers appealed.
The Supreme Court of Canada allowed the appeals. First, the Court of Appeal erred in finding that the Appeals Tribunal lacked jurisdiction to consider the constitutionality of the challenged provisions of the Act and Regulations. The Court of Appeal also erred in failing to find that the challenged provisions violated equality rights under s. 15 of the Charter by discriminating against the injured workers on the basis of physical disability. Finally, the Charter rights violation was not a reasonable limit prescribed by law under s. 1. Accordingly, the challenged provisions were of no force and effect under s. 52(1) of the Constitution Act, 1982. The declaration of statute invalidity was postponed for six months.
Administrative Law – Topic 9013
Boards and tribunals – Jurisdiction – General – Constitutional questions – The Supreme Court of Canada stated that “administrative tribunals which have jurisdiction – whether explicit or implicit – to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. This presumption may only be rebutted by showing that the legislature clearly intended to exclude Charter issues from the tribunal’s authority over questions of law. To the extent that the majority reasons in Cooper v. Canadian Human Rights Commission … are inconsistent with this approach, I am of the view that they should no longer be relied upon.” – The court set out the restated approach to an administrative tribunal’s jurisdiction to subject legislative provisions to Charter scrutiny – See paragraphs 3, 26 to 48.
Administrative Law – Topic 9013
Boards and tribunals – Jurisdiction – General – Constitutional questions – The Nova Scotia Court of Appeal held that the Workers’ Compensation Appeals Tribunal did not have jurisdiction to determine whether provisions of the Workers’ Compensation Act and Regulations, respecting the benefits entitlement of injured workers with chronic pain, violated equality rights under the Charter – The Tribunal’s jurisdiction was limited to an independent and prompt review of the Workers’ Compensation Board’s application of the Act, and did not extend to determining whether the Legislature exceeded the constitutional limits of its authority – The Act neither expressly granted nor withheld authority to decide questions of law – The Tribunal, unlike the Workers’ Compensation Board, was an adjudicative body – However, the Tribunal was to decide an appeal from the Board according to the provisions of the Act and Regulations and the policies of the Board -As a matter of statutory interpretation, there was no legislative intent to give the Tribunal jurisdiction to determine Charter issues – The Supreme Court of Canada held that the Tribunal had jurisdiction to determine Charter issues, stating that “the Appeals Tribunal thus has explicit jurisdiction to decide questions of law arising under the challenged provisions, a jurisdiction which is presumed to include the authority to consider their constitutional validity. This presumption is not rebutted in this case, as there is no clear implication arising from the Act that the legislature intended to exclude the Charter from the scope of the Appeals Tribunal’s authority.” – See paragraphs 4, 49 to 65.
Civil Rights – Topic 5667.1
Equality and protection of the law – Workers’ compensation – The Functional Restoration (Multi-Faceted Pain Series) Program Regulations and s. 10B of the Workers’ Compensation Act limited benefits that injured workers with chronic pain would otherwise receive – The Supreme Court of Canada held that the provisions violated equality rights (Charter, s. 15(1)) – The provisions subjected the injured workers to differential treatment based on physical disability (chronic pain) – The differential treatment violated the essential human dignity of injured workers with chronic pain, thereby discriminating against them -The separate regime for chronic pain under the Act and Regulations did not take into account the actual needs, capacity or circumstances of workers suffering from chronic pain in a manner that respected their value as human beings and as members of Canadian society – The interests affected by the challenged provisions were not “purely, or even primarily, economic” -Work and employment were crucially important elements of essential human dignity – The challenged provisions, which preemptively deemed all chronic pain claims to be fraudulent, were not reasonable limits prescribed by law under s. 1 of the Charter, because they did not minimally impair the equality rights of chronic pain sufferers – See paragraphs 66 to 117.
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law (Charter, s. 1) – [See
Civil Rights – Topic 5667.1
].
Civil Rights – Topic 8363
Canadian Charter of Rights and Freedoms – Denial of rights – Jurisdiction (incl. court of competent jurisdiction) – The Supreme Court of Canada held that the Nova Scotia Workers’ Compensation Appeals Tribunal had jurisdiction to consider the constitutionality of challenged provisions of the Act and Regulations – The court stated that “since the remedy requested arises from s. 52(1) of the Constitution Act, 1982, it is not necessary to determine whether the Appeals Tribunal is a ‘court of competent jurisdiction’ within the meaning of s. 24(1) of the Charter” – See paragraph 65.
Civil Rights – Topic 8504
Canadian Charter of Rights and Freedoms – Enforcement – Jurisdiction – [See first
Administrative Law – Topic 9013
].
Workers’ Compensation – Topic 5616
Compensation – Compensable injuries and disabilities – Chronic pain – [See
Civil Rights – Topic 5667.1
].
Workers’ Compensation – Topic 7002
Practice – Appeals – Review of board’s decision by an appeal board or by the courts – Jurisdiction – [See second
Administrative Law – Topic 9013
].
Cases Noticed:
Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 3].
Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271, refd to. [para. 3].
Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1, refd to. [para. 3].
Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, overruled [para. 3].
Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 23].
Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 23].
M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 23].
Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1, refd to. [para. 23].
Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329, refd to. [para. 23].
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 29].
Bell Canada v. Canadian Telephone Employees Association et al., [2001] 2 F.C. 392; 190 F.T.R. 42 (T.D.), revd. [2001] 3 F.C. 481; 272 N.R. 50 (F.C.A.), refd to. [para. 43].
Bell Canada v. Canadian Human Rights Commission – see Bell Canada v. Canadian Telephone Employees Association et al.
Canada (Minister of Citizenship and Immigration) v. Reynolds (1997), 139 F.T.R. 315 (T.D.), refd to. [para. 43].
McLeod v. Egan, [1975] 1 S.C.R. 517; 2 N.R. 443, refd to. [para. 45].
Taylor (David) & Son Ltd. v. Barnett, [1953] 1 All E.R. 843 (C.A.), refd to. [para. 45].
Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 45].
Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 52].
Pasiechnyk v. Workers’ Compensation Board (Sask.) – see Pasiechnyk et al. v. Procrane Inc. et al.
Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 70].
Reference Re Sections 32 and 34 of the Workers’ Compensation Act (Nfld.), [1989] 1 S.C.R. 922; 96 N.R. 227; 76 Nfld. & P.E.I.R. 181; 235 A.P.R. 181, refd to. [para. 72].
Janzen and Govereau v. Pharos Restaurant and Grammas et al., [1989] 1 S.C.R. 1252; 95 N.R. 81; 58 Man.R.(2d) 1, refd to. [para. 76].
Janzen v. Platy Enterprises Ltd. – see Janzen and Govereau v. Pharos Restaurant and Grammas et al.
Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161, refd to. [para. 76].
Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 79].
Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 81].
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 84].
Lavoie et al. v. Canada et al., [2002] 1 S.C.R. 769; 284 N.R. 1, refd to. [para. 85].
Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 88].
Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201, refd to. [para. 88].
Lovelace v. Ontario – see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.
R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 90].
Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.), [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 99].
Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 99].
Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, refd to. [para. 100].
R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 107].
Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 107].
Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 109].
Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 109].
R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 112].
R. v. Edwards Books and Art Ltd. – see R. v. Videoflicks Ltd. et al.
White v. Slawter (1996), 149 N.S.R.(2d) 321; 432 A.P.R. 321 (C.A.), refd to. [para. 113].
Marinelli et al. v. Keigan et al. (1999), 173 N.S.R.(2d) 56; 527 A.P.R. 56 (C.A.), refd to. [para. 113].
Statutes Noticed:
Functional Restoration (Multi-Faceted Pain Services) Program Regulations – see Workers’ Compensation Act Regulations (N.S.).
Workers’ Compensation Act, S.N.S. 1994-95, c. 10, sect. 10A, sect. 10B, sect. 10E, sect. 185(1), sect. 252(1) [Annex].
Workers’ Compensation Act Regulations (N.S.), Functional Restoration (Multi-Faceted Pain Services) Program Regulations, Reg. 57/96, sect. 2(b), sect. 3, sect. 4, sect. 5, sect. 6, sect. 7, sect. 8 [Annex].
Authors and Works Noticed:
Canada, Association of Workers’ Compensation Boards of Canada, Compensating for Chronic Pain – 2000 (2000), generally [para. 113].
McAllister, Debra M., Administrative Tribunals and the Charter: A Tale of Form Conquering Substance (1992), Special Lectures of the Law Society of Upper Canada 1992: Administrative Law: Principles, Practices and Pluralism, p. 150 [para. 35].
Murray, T.J., Chronic Pain, Report prepared for the Workers’ Compensation Board of Nova Scotia (1995), generally [para. 113].
Ontario, Workplace Safety and Insurance Board, Chronic Pain Initiative: Report of the Chair for the Chronic Pain Panels (2000), p. 5 [para. 113].
Roman, Andrew J., Case Comment: Cooper v. Canada (Human Rights Commission) (1997), 43 Admin. L.R.(2d) 243, p. 244 [para. 35].
Counsel:
Kenneth H. LeBlanc, Anne S. Clark, Anne Derrick and Patricia J. Wilson, for the appellants;
Brian A. Crane, Q.C., David P.S. Farrar and Janet Curry, for the respondent, Workers’ Compensation Board of Nova Scotia;
Catherine J. Lunn, for the respondent, Attorney General of Nova Scotia;
John P. Merrick, Q.C., and Louanne Labelle, for the intervenor, Nova Scotia Workers’ Compensation Appeals Tribunal;
Ena Chadha and William Holder, for the intervenor, Ontario Network of Injured Workers Groups;
Steven Barrett and Ethan Poskanzer, for the intervenor, Canadian Labour Congress;
Robert Earl Charney, for the intervenor, Attorney General of Ontario;
Kathryn L. Kickbush, for the intervenor, Attorney General of British Columbia;
Written submissions only by Curtis Craig, for the intervenor, Workers’ Compensation Board of Alberta.
Solicitors of Record:
Workers’ Advisers Program, Halifax, N.S., for the appellants;
Stewart McKelvey Stirling Scales, Halifax, N.S., for the respondent, Workers’ Compensation Board of Nova Scotia;
Attorney General of Nova Scotia, Halifax, N.S., for the respondent, Attorney General of Nova Scotia;
Merrick Holm, Halifax, N.S., for the intervenor, Nova Scotia Workers’ Compensation Appeals Tribunal; Advocacy Resource Centre for the Handicapped, Toronto, Ontario, for the intervenor, Ontario Network of Injured Workers Groups;
Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, Canadian Labour Congress;
Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;
Attorney General of British Columbia, Victoria, B.C., for the intervenor, Attorney General of British Columbia;
Workers’ Compensation Board of Alberta, Edmonton, Alberta, for the intervenor, Workers’ Compensation Board of Alberta.
These appeals were heard on December 9, 2002, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada.
On October 3, 2003, Gonthier, J., delivered the following judgment in both official languages for the Court.
