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
Ms. Muggah ("the applicant") and Mr. Weichel
("the worker") divorced in 2008. Under their Corollary
Relief Judgment, the worker was obligated to pay spousal support,
and to maintain the applicant as a beneficiary on his life
insurance policy. The worker was killed in a workplace accident in
2013. The applicant received the life insurance payment, but then
claimed survivor benefits under the Workers' Compensation
The Board refused her application, because the applicant was not
eligible as either a "spouse"—which the Act limited
to married or cohabiting common-law couples—or as a dependent
member of the worker's family. On appeal to the Workers'
Compensation Appeals Tribunal, the applicant claimed that the
relevant provisions of the Act "discriminated against her on
the basis of marital status" contrary to section 15 of the
Charter. The WCAT dismissed her Charter
challenge, and the applicant appealed to the NSCA. (See paras
(1) Distinction based on enumerated or analogous
The applicant relied on the analogous ground of "marital
status," arguing that being divorced is "a type of
'marital status'" (para 26). But that's not what
the cases say (para 29).
Discrimination based on "marital status" has only been
found where the distinction is between types of ongoing
relationships—e.g. "a married couple and a couple with a
common law or de facto relationship, or...couples in heterosexual
and same sex relationships"—and not
between current and former relationships (para 34).
As Justice Fichaud remarked: "If becoming a former spouse
triggered the constitutional equality guarantee, one would expect
to see s. 15(1) permeating the case law on divorce. That hasn't
occurred" (para 34).
This was enough to resolve the section 15 question, but the
Court went on to consider step two of the test (paras 41-42).
(2) Disadvantage by perpetuating prejudice or
Justice Fichaud eloquently summarized the principles of
substantive equality: "The assessment of
'discrimination' isn't a controlled experiment in
mirror comparison. The court eyes the broader vista of substantive
equality" (para 45). From this perspective, there was no
discrimination – the Act could legitimately limit entitlement
to survivor benefits, because former spouses could take advantage
of spousal support and other family law "safeguards"
 In my view, from the full contextual perspective, the
impugned provisions of the Workers' Compensation Act
are not discriminatory. As discussed, those provisions left the
matter to be handled by the law and practice of divorce. But the
Legislature didn't cast divorced spouses into a legal vacuum.
Given the misfortune of Mr. Weichel's death, Ms. Muggah was
well-served by the divorce-related machinery that operates outside
the Workers' Compensation Act.
The applicant in this case received spousal support until the
worker's death, and life insurance upon his death. The
availability, and routine nature, of this kind of corollary relief
was a fundamental factor in finding the workers' compensation
provisions constitutional (paras 58-59); divorced spouses are not
ignored by the law, but rather subject to a different legal
In the result, Muggah confirms that substantive
equality can only be analyzed by moving away from mirrors and
vacuums, and considering statutory schemes in their proper,
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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