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Persons with chronic pain cannot be excluded from workers’ comp benefits

October 03, 2003

Excluding people with chronic pain from regular compensation benefits is discriminatory, Supreme Court holds

In Nova Scotia (Workers’ Compensation Board) v. Martin, the Supreme Court of Canada held that persons who suffer from chronic pain cannot be excluded from workers’ compensation benefits.


The Nova Scotia Workers’ Compensation Board denied regular benefits to two workers who were disabled by chronic pain caused by work-related injuries. The workers appealed to the Workers’ Compensation Appeals Tribunal (WCAT). They argued that the Act and regulations breached their equality rights under s. 15 of the Canadian Charter of Rights and Freedoms.

The Workers’ Compensation Board opposed the appeal. It said that the Nova Scotia Workers’ Compensation Act and regulations did not violate the Charter. The Board also argued that the WCAT did not have the jurisdiction to apply the Charter.

The WCAT found in favour of the workers. It decided that it had jurisdiction to apply the Charter. It also decided that the Act and regulations discriminated against workers disabled by chronic pain and could not be justified.

The Nova Scotia Court of Appeal allowed the Board’s appeal. It held that the WCAT did not have jurisdiction to consider or apply the Charter when it interpreted the Act. It also decided that the exclusion of chronic pain from the regular workers’ compensation system did not violate the equality provisions of the Charter. The disabled workers appealed to the Supreme Court of Canada.

The Supreme Court’s decision

The Supreme Court overturned the Court of Appeal’s decision. It held that the WCAT and other administrative tribunals who operate under statutes that give them the power to decide questions of law have jurisdiction to apply the Charter. In reaching this conclusion, the Court held that:

…Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the Courts… As McLachlin J… stated [in a previous case]: “The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals.”

The Supreme Court also held that excluding people with chronic pain from regular compensation benefits was discriminatory. The Court stated:

…[T]he chronic pain regime under the Act not only removes the appellants’ ability to seek compensation in civil actions, but also excludes chronic pain sufferers from the protection available to other injured workers. It also ignores the real needs of workers who are permanently disabled by chronic pain by denying them any long-term benefits and by excluding them from the duty imposed upon employers to take back and accommodate injured workers. The Act thus sends a clear message that chronic pain sufferers are not equally valued and deserving of respect as members of Canadian society.

Finally, the Court held that the discrimination could not be justified under s. 1 of the Charter. It declared that the challenged sections of the Act and regulations were of no force and effect. However, the Court granted the government’s request that the remedy be suspended for six months. This meant that the limited benefits of the current program would be preserved until the government of Nova Scotia amended the Act and regulations to bring them in line with the requirements of the Charter.

Read the decision.

Steven Barrett and Ethan Poskanzer represented the Canadian Labour Congress, which intervened in the appeal in support of the disabled workers.


Steven Barrett, Ethan Poskanzer

Practice Areas

Appeals & Judicial Review, Constitutional Law, Labour Law