News Release Archive

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

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.


Contact: Wayne MacKay  902-424-4111 or 902-477-5864 (home)

trp                  Feb. 7, 1997 - 4:28 p.m.