Workers Compensation Act, R.S.B.C. 1996, c. 492 provisions granting spousal benefits for life to widowed parents 40 years of age or older when their children cease dependency but denying pension benefits to widowed parents under 40 years of age when their children cease dependency are discriminatory on the basis of age and therefore contrary to section 15 of the Canadian Charter of Rights and Freedoms

Administrative law – Workers compensation – Benefits – Charter of Rights – Discrimination – Equality rights

Burnett v. British Columbia (Worker’s Compensation Board), [2002] B.C.J. No. 1738, British Columbia Supreme Court, July 25, 2002, Holmes J.

The Petitioner’s spouse was killed in a work-related accident when she was 32 years old with one dependent child aged 15. She received monthly spousal benefits until her child, by definition under the Workers Compensation Act, ceased to be a dependent because she was not yet 40 years of age when the child’s dependency ceased. Had she been aged 40 or older, she would have remained entitled to continuation of monthly pension benefits for the rest of her life. The Petitioner challenged these provisions as an infringement of section 15(1) of the Charter.

The general principles for determining whether there has been an infringement of section 15(1) equality rights are found in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. They are as follows: (1) Does the impugned legislation impose differential treatment between the Petitioner and others in purpose or effect? (2) Is the differential treatment based upon an enumerated or analogous ground? and (3) Does the law have a purpose or effect which is discriminatory within the meaning of the section 15 equality guarantee?

The first stage was met because the legislation clearly gave rise to differential treatment in providing lifetime pensions to a surviving spouse 40 years of age or older when their children cease dependency but providing no pension to those under 40 years of age when their children cease dependency. The second stage was also met because the differential treatment was based on age, which is an enumerated ground under section 15(1).

The third stage, whether the distinction was discriminatory, was the key issue. Legislative distinctions have been found to violate human dignity by imposing differential treatment on arbitrary or erroneous grounds which are unrelated to the claimant’s actual attributes or circumstances. Equality is a comparative concept, which requires identification of appropriate comparators. The identification of a group in relation to which the Petitioner can properly claim “unequal treatment” is crucial and must bear an appropriate relationship between the comparator group and the benefit that is the subject of the complaint (Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703). The appropriate comparator for the section 15 analysis was widowed parents 40 years of age or older when they cease to have any dependent children and widowed parents under 40 years of age when they cease to have dependent children.

In this case, the Appeal Division focused on general presumptions underlying the overall benefit scheme under the Act relating to the several different categories of surviving spousal benefits, including the presumption that in general younger people can more easily achieve economic self-sufficiency than older people and, in general, people without dependent children may more easily achieve economic self-sufficiency than people with dependent children. The Appeal Division did not directly deal with the application of these general presumptions to the appropriate comparator groups.

The broad generalization that younger persons have better job prospects than older persons cannot support the distinction created by the impugned legislation relative to persons under age 40, compared to that age 40 or over, whose children have ceased dependency. Spouses who are under 40 when their children cease dependency may well, because of the very young age they started families, be less likely than the over age 40 group to have achieved education, vocational training, or job experience. The differential treatment accorded to the Petitioner as a member of the age 40 group was not adequately based on actual circumstances and needs, and therefore the impugned sections of the Act were found to discriminate against the Petitioner on the basis of age in violation of section 15.

NB: The parties agreed to defer the issue of whether the breach could be justified pursuant to section 1 of the Charter.

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