Section 15 and Statute-Barred ‘Charter Widows’: Ravndahl v Saskatchewan

One of my constitutional law professors once remarked that the rights-based ethic of my generation is largely informed by the fact of our coming of age in the post-Charter era. Personally, I believe that the Charter, for all of its positives, is a systemically underinclusive document. Nevertheless, as a child of the post-Charter era, I still treat it as the litmus test of fundamental rights. But if deference to the Charter is the kneejerk reaction of the post-Charter generation, the opposite is probably true for ‘Charter widows.’

Last week, the Supreme Court of Canada (“SCC”) released its decision in Ravndahl v Saskatchewan, 2009 SCC 7 [Ravndahl], a case that considers whether the imposition of statutory limitation periods on the Charter itself constitutes a violation of the Charter. Writing for a unanimous court, McLachlin C.J. upheld the decision of the Saskatchewan Court of Appeal, finding that the appellant’s claims for personal relief under s. 52 of the Canada Act, 1982 are statute-barred, by The Limitations of Actions Act, RSS 1978, c L‑15 [Limitations Act].

Factual, Procedural, and Legislative History

The appellant, Ms. Ravndahl, is a ‘Charter widow’: she belongs to a small class of individuals whose entitlement to the pensions of their bereaved are delimited by pre-Charter legislation as a result of their decision to remarry. McLachlin C.J. explains:

Before the equality provision of the Canadian Charter of Rights and Freedoms came into force on April 17, 1985, workers’ compensation legislation provided that pensions to survivor spouses would cease upon remarriage. The appellant, who held a widow’s pension, lost her benefit upon remarriage on October 20, 1984, and hence brings this action.

Ms. Ravndahl’s claim has not yet gone to trial. The Court of Queen’s Bench of Saskatchewan held that her statement of claim (which challenged the constitutionality of The Workers’ Compensation Act, RSS 1978, c W-17 [Compensation Act]) disclosed no cause of action because it was statute-barred by the six year limitation period detailed in s. 3 of the Limitation Act. The impugned section of the Compensation Act reads:

68. (1) If a surviving dependant spouse marries, the monthly payments to the spouse shall cease but the spouse shall be entitled in lieu of them to a lump sum equal to the monthly payments for two years.

The legislative scheme denying pensions to remarried widows contemplated by s. 68 of the Act has all of the trappings of a s. 15 violation: there is an easily identifiable comparator group, the enumerated ground of discrimination on the basis of age, and so on. Likely bearing this mind, in 1985, the Compensation Act was amended by way of the The Workers’ Compensation Amendment Act, 1985, SS 1984-85-86, c 89, which stipulated that, beginning on September 1, 1985, remarriage would not cause a termination of pension benefits. The amendments did not effect Ms. Ravndahl, however, because her remarriage occurred prior to the amendments to the Compensation Act taking into effect.

Almost 15 years later, in 1999, an amendment to The Workers’ Compensation General Regulations, 1985, RRS, c W-17, Reg 1, reinstated spousal pensions for persons who had remarried between April 17, 1985 (the day the equality rights provision of the Charter came into force) and August 31, 1985 (S. Reg. 15/1999, s. 2). However, having remarried prior to April 17, 1985, Ms. Ravndahl had no recourse in this amendment either.

Later in 1999 however, The Special Payment (Dependent Spouses) Act, SS 1999, c S-56.01 [Special Payment Act], provided for an $80,000 payment to person’s whose spousal pensions were terminated as a result of the remarriage provisions in the pre-Charter version of the Compensation Act.

However, Ms. Ravndahl made no application for the above payment. She instead filed a statement of claim seeking damages and a declaration of invalidity for both The Workers’ Compensation Act, 1979, SS 1979, c W-17.1, and the Special Payment Act. However, her action was struck on the basis of s. 3(1)(j) of the Limitations Act, which identifies a residual limitation period of six years after the cause of action arose for any statute not specified elsewhere in s. 3 of the Limitations Act. Ms. Ravndahl’s appeal was denied both at trial, and by a divided Saskatchewan Court of Appeal, and the matter proceeded to the Supreme Court.

The SCC Weighs In

McLachlin C.J. drew a distinction between Ms. Ravndahl’s claims for personal relief, and the broader s. 52 declaration for invalidity. Bearing this distinction in mind, the Chief Justice distilled Ms. Ravndahl’s appeal down to three issues: (1) whether s. 3 of the Limitations of Actions Act applies to the appellant’s claim for personal relief, (2) whether her personal claims were statute-barred, and (3) whether a declaration of invalidity was an appropriate remedy.

McLachlin C.J. made quick work of the first issue, deferring to Kingstreet Investments Ltd v New Brunswick (Finance), [2007] 1 SCR 3, which established that limitation periods do in fact apply with respect to personal remedies that flow from the striking down of an unconstitutional statute.

As a result of having answered the first issue in the affirmative, McLachlin C.J.’s consideration of the second issue – relating to whether or not the appellant’s personal claims were statute-barred – hinged on determining when the appellant cause of action arose. Ms. Ravndahl argued that her cause of action arose in 1999, upon the passage of the Special Payment Act. However, the Chief Justice found instead that Ms. Ravndahl’s cause of action arose on April 17, 1985, when s. 15 came into force. By extension, McLachlin C.J. found that the appellant had failed to meet the six year limitation period.

The Chief Justice’s finding in this regard rested on distinguishing Kingstreet. In Kingstreet, the Supreme Court found a new cause of action arose each time in the appellant paid taxes under unconstitutional legislation. However, in the case at bar, the appellant was attempting to ground a cause of action in “subsequent attempts by the Legislature to lessen the discriminatory effects of legislation.” In McLachlin C.J.’s view, the latter did not disclose a cause of action because the originating source of the deprivation of rights remained the 1978 version of the Compensation Act.

McLachlin C.J. made no explicit pronouncement on the third issue, relating to the general s. 52 remedy, reserving that determination for the judge in Ms. Ravndahl’s forthcoming trial. However, in light of her finding that the limitation date for Ms. Ravndahl’s personal claims had come and gone, the Chief Justice concluded that “any remedies flowing from s. 52 would not be personal remedies, but would be remedies from which the appellant, as an affected person, might benefit.”

The Charter-Widow Phenomenon

Leaving aside the general (s. 52) remedy issue, the implication of McLachlin C.J.’s finding seems to be that an underinclusive attempt by legislature to redress a past instance of discrimination is beyond the purview of s. 15 of the Charter. The Chief Justice’s finding in this regard seems contrary to the spirit of s. 15 jurisprudence, which has countenanced s. 15 causes of action in underinclusive legislation in the past. In Vriend v Alberta, [1998] 1 SCR 493, for instance, the Supreme Court found that a s. 32 Canada Act, 1982 remedy was available on the grounds that human rights legislation which omitted sexual orientation contravened s. 15 of the Charter.

At bottom, then, the SCC decision in Ravndahl suggests that the issue of whether or not the Special Payment Act, by virtue of being underinclusive, impugns the equality rights of Charter-Widows such as Ms. Ravndahl is not justiciable. One can only surmise that the net effect of this will be the emergence of a ‘Charter-widow’-like phenomenon across a variety of legislative contexts.