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ARTICLE · 02 JULY 2015

Survivor Benefits & Mirrors: NSCA Rejects S 15 Charter Challenge In Workers' Compensation Case

Stewart McKelvey
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Denying survivor benefits to a former spouse is not discriminatory, according to a recent Nova Scotia Court of Appeal decision.

CanadaEmployment and HR
Jennifer Taylor
Jennifer Taylor
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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.

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