Former Crown lawyer files Charter challenge over workers' compensation system

A former Crown prosecutor who was diagnosed with post-traumatic stress disorder is bringing a Charter challenge against the Workers' Compensation Board and the Nova Scotia government over the province's limit on compensation for injured workers.

Brandon Trask worked for the Nova Scotia Public Prosecution Service for nearly four years. For two of those years, he said he worked on dozens of cases involving child sexual abuse offences, which led to his PTSD diagnosis and inability to continue working as a Crown attorney.

After not being cleared to return to work, Trask started a new job as a law professor in Manitoba at a significantly lower salary. 

He said he was alarmed to find the Workers' Compensation Board would not provide any loss-of-income compensation because of Nova Scotia's cap on benefits payable to injured workers.

"I was frankly shocked. I did not realize until I found myself in this situation that Nova Scotia had such a ridiculously low cap," Trask told CBC News. 

Nova Scotia has the lowest benefits available to injured workers in Canada, according to a recent report.

The maximum benefit rate is calculated every year by the Workers' Compensation Board, which multiplies the average industrial wage in Nova Scotia by 135.7 per cent. That percentage is set in provincial legislation that was last updated in 2009. 

In 2024, maximum annual compensation is capped at $72,500. It was limited to $60,900 in 2019, the year Trask was injured. His salary at the time was $127,000.

The Workers' Compensation Board and the province both declined to comment on Trask's Charter challenge.

A spokesperson for the Department of Labour said in an email there are no restrictions on an employer topping up the benefits paid to an injured worker to match the salary they received before being injured.

Provincial legislation 'unconstitutional'

Trask is arguing to the Nova Scotia Workers' Compensation Tribunal that parts of the province's Workers' Compensation Act are unconstitutional. 

The act sets the criteria for the maximum benefits cap and it also stipulates injured workers cannot sue their employer. 

According to Trask's challenge, those parts of the legislation infringe on his rights under the Charter of Rights and Freedoms to pursue a livelihood, to not be deprived of the principles of fundamental justice and to be treated equally under the law. 

Workers who have made significant decisions in their lives like buying a house or starting a family based on their salary could be put in very difficult financial situations by Nova Scotia's current workers' compensation system if they are injured on the job and not fully compensated, Trask said in an interview.

Trask said he was injured from prosecuting "really, really horrific offences, including those committed against some of the most vulnerable people," only to be left fighting for compensation. 

"It's not a good feeling," he said.