Introduction

Denying survivor benefits to a former spouse is not discriminatory, according to a recent Nova Scotia Court of Appeal decision. In Muggah v Nova Scotia (Workers’ Compensation Appeals Tribunal), 2015 NSCA 63, the Court unanimously rejected a section 15 Charter challenge alleging that certain provisions of the Workers’ Compensation Act discriminated between current and divorced spouses.

This case is a good reminder that section 15(1) requires a contextual analysis of substantive equality, not a one-for-one “mirror comparison.” On a substantive equality analysis, the provisions of the Act that limit payment of survivor benefits to a spouse or member of the worker’s family are constitutional. Former spouses can instead pursue remedies through family law.

Discrimination claim

Ms. Muggah (“the applicant”) and Mr. Weichel (“the worker”) divorced in 2008. Under their Corollary Relief Judgment, the worker was obligated to pay spousal support, and to maintain the applicant as a beneficiary on his life insurance policy. The worker was killed in a workplace accident in 2013. The applicant received the life insurance payment, but then claimed survivor benefits under the Workers’ Compensation Act.

The Board refused her application, because the applicant was not eligible as either a “spouse”—which the Act limited to married or cohabiting common-law couples—or as a dependent member of the worker’s family. On appeal to the Workers’ Compensation Appeals Tribunal, the applicant claimed that the relevant provisions of the Act “discriminated against her on the basis of marital status” contrary to section 15 of the Charter. The WCAT dismissed her Charter challenge, and the applicant appealed to the NSCA. (See paras 1-15.)

Section 15 analysis

There is a well-known two-step test for proving that a law discriminates contrary to section 15(1): “(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?” (Withler v Canada (Attorney General), 2011 SCC 12 at para 30, cited in Muggah at para 21; see also Quebec (Attorney General) v A, 2013 SCC 5 and Kahkewistahaw First Nation v Taypotat, 2015 SCC 30).

(1)  Distinction based on enumerated or analogous ground?

The applicant relied on the analogous ground of “marital status,” arguing that being divorced is “a type of ‘marital status’” (para 26). But that’s not what the cases say (para 29).

Discrimination based on “marital status” has only been found where the distinction is between types of ongoing relationships—e.g. “a married couple and a couple with a common law or de facto relationship, or…couples in heterosexual and same sex relationships”—and not between current and former relationships (para 34).

As Justice Fichaud remarked: “If becoming a former spouse triggered the constitutional equality guarantee, one would expect to see s. 15(1) permeating the case law on divorce. That hasn’t occurred” (para 34).

This was enough to resolve the section 15 question, but the Court went on to consider step two of the test (paras 41-42).

(2)  Disadvantage by perpetuating prejudice or stereotyping?

Justice Fichaud eloquently summarized the principles of substantive equality: “The assessment of ‘discrimination’ isn’t a controlled experiment in mirror comparison. The court eyes the broader vista of substantive equality” (para 45). From this perspective, there was no discrimination – the Act could legitimately limit entitlement to survivor benefits, because former spouses could take advantage of spousal support and other family law “safeguards” (para 57):

[56]        In my view, from the full contextual perspective, the impugned provisions of the Workers’ Compensation Act are not discriminatory.  As discussed, those provisions left the matter to be handled by the law and practice of divorce.  But the Legislature didn’t cast divorced spouses into a legal vacuum.  Given the misfortune of Mr. Weichel’s death, Ms. Muggah was well-served by the divorce-related machinery that operates outside the Workers’ Compensation Act.

The applicant in this case received spousal support until the worker’s death, and life insurance upon his death. The availability, and routine nature, of this kind of corollary relief was a fundamental factor in finding the workers’ compensation provisions constitutional (paras 58-59); divorced spouses are not ignored by the law, but rather subject to a different legal regime.

In the result, Muggah confirms that substantive equality can only be analyzed by moving away from mirrors and vacuums, and considering statutory schemes in their proper, complete context.