News Release Archive
HUMAN RIGHTS COMMISSION--COURT OF APPEAL RULING ----------------------------------------------------------------- A fisherman's widow fighting for reinstatement of a pension under Nova Scotia's Human Rights Act suffered a setback recently in Nova Scotia's Court of Appeal. Helene O'Quinn lost her husband, Manuel Jesso, when he drowned in a fishing accident in Nova Scotia in 1980. She was awarded a widow's pension by the Workers' Compensation Board. That pension was discontinued by the board in 1986, when she remarried, in keeping with the regulations then in effect. In October 1991, the Nova Scotia Human Rights Act was amended to prohibit discrimination in the provision of services on the grounds of marital status. A year later, the Workers' Compensation Act was amended to remove the practice of disentitling widows who remarried. Ms. O'Quinn subsequently tried to have her pension re-instated. When the Workers' Compensation Board refused, she lodged a complaint under the Human Rights Act, alleging discrimination on the basis of marital status. She argued that she should be able to re-open her claim as of the date when the amendment removed the re-marriage clause from the Workers' Compensation Act. The Nova Scotia Human Rights Commission investigated, but could not resolve the complaint. The matter went to a board of inquiry under the Human Rights Act, chaired by Susan M. Ashley. In a far-reaching decision, Ms. Ashley ordered the Workers' Compensation Board to reconsider applications for re-instatement of benefits by widows like Ms. O'Quinn, who had lost their pensions when they re-married. According to Ms. Ashley, nothing in the amended Workers' Compensation Act prevented the board from reconsidering Ms. O'Quinn's application, and its failure to do so was discrimination based on her marital status. In its decision of January 23, 1997, the Court of Appeal found that the board of inquiry was wrong to find that the Workers' Compensation Board could have re-opened O'Quinn's claim. It found that the legislature had not intended the 1992 amendments to the Workers' Compensation Act to be retroactive. For this reason, the Workers' Compensation Act itself had made Ms. O'Quinn ineligible, not any action of the compensation board. The court found that neither the Charter of Rights and Freedoms nor the Human Rights Act could be used to give Ms. O'Quinn a remedy under the Workers' Compensation Act in a way that had not been intended by the legislature. According to A. Wayne MacKay, executive director of the Nova Scotia Human Rights Commission, "Boards of inquiry can, and are obligated to, interpret the Human Rights Act in light of the Charter of Rights and render any legislation that is inconsistent with the charter inoperative for present or future purposes." However, the court determined that the board of inquiry in the O'Quinn case went too far in ruling that the legislation was retroactively invalid, something only a court can do, Mr. MacKay explained. The court found that only a charter challenge in the Supreme Court of Nova Scotia could lead to a finding that the legislation does or does not infringe Ms. O'Quinn's right under the charter to be free from discrimination, because to do so requires a finding of past invalidity, not just a finding in respect to the present or future facts. -30- Contact: Wayne MacKay 902-424-4111 or 902-477-5864 (home) trp Feb. 7, 1997 - 4:28 p.m.