A provincial or federal statute may be challenged on the basis of S. 15 of the Charter of Rights & Freedoms. To succeed on the application, it must be shown to violate the Charter and also not be caught by the saving provision in S.1.

Ontario Statutes

Employment Standards Act – Benefit Regulations

The Employment Standards Act of Ontario contains a provision in its regulations ¹ which allows age based discrimination in disability and insurance plans. This was allowed a specific exemption from the Human Rights Code.

A challenge was made to this law based again on a s. 15 Charter argument. The arbitrator agreed that the regulation did violate S. 15 but was justified under S. 1. He concluded that the ambition was to end mandatory retirement without adversely impacting these benefit plans. He did note that “age is different” from other prohibited grounds, this being one which will be shared by all members of the group. These rules will eventually apply to all as they aged. While there may be some short term harm done to the effected class, these concerns must be weighed against the greater social initiative. ²

A recurrent theme repeated in this decision was the notion referenced in McKinney that age is “different” from other protected grounds.

Human Rights Case

The school board in Thames Valley adopted a policy which required retired teachers who wished to work as occasional teachers be certified in certain disciplines, namely, Frech, special education, music or technology. The same policy did not apply to non-retired teachers who similarly wished to work as occasional teachers. A complaint was made by a retired teacher asserting unfair conduct due to age. The Human Rights Tribunal dismissed the complaint. The distinction, it concluded, was between two classes, those with pensions and those who were eligible for permanent positions and not, as alleged, between older and younger teachers. ³.

Workplace Safety & Insurance Act

The Workplace Safety and Insurance Act was successfully challenged as being offside the Charter due to its failure to treat mental distress claims in a manner similar to claims of physical disability.

A further argument was made that the same legislation fails to offer equal protections to older workers.

Ontario’s legislation presently caps entitlement to benefits at age 65 or for a two year period where the accident occurred after the claimant’s 63^rd birthday. This is also the case for workers who have chosen to work beyond age 65 and are injured after such date.

In addition, a worker injured after the age of 65, must suffer the loss within the immediate two year period. A latent surgery and unemployment beyond this two year period will mean a denial of benefits.

In addition, the Act’s obligation to re-hire an injured worker ceases at age 65.

The present statutory regime has been in place since 1990, at which time the existing wage loss system was introduced. Ironically, prior to that date, from the introduction of the workers’ compensation system in 1915, the worker was entitled to a life-time income for a permanent disability.

The revisions of the Act in 1990 came with an implicit presumption that age 65 brought with it a retirement date and at the time, a mandatory one. Perhaps stated more acutely, it was not then a violation of the Human Rights Code to terminate due to the worker reaching age 65.

Of course, the Human Rights Code has long since abandoned this notion, as has that of every other jurisdiction in Canada. However, when Ontario’s Code was amended in December of 2006, a specific exemption was provided to except from its ambit the provisions of the Act.

This statutory provision which places a limit on loss of earnings benefits to two years, given a workplace injury at age 63 or above was unsuccessfully challenged. A case was brought to set aside this law as contrary to the Charter. ⁴ The Tribunal found no Charter violation, on the theory that the statue was in substance an insurance scheme, and the apparent distinction due to age did not amount to discrimination. The Tribunal found that most workers do retire before age 65 and the section was not based on prejudice or stereoptyping. The broader goal of social and economic policy was determined to prevail.  ( reconsideration motion denied)

The Office of the Worker Adviser, that is, of the Ministry of Labour, joined counsel for the employee in supporting the appeal.

The facts of the case showed the employee had suffered a workplace injury at age 63 in February of 2001. He was awarded benefits until age 65 in May of 2002 and a 37% non-economic loss. The employer then had in place a mandatory retirement policy at age 65, this being prior to the amendments to the Human Rights Act.

In February of 2003, the worker asserted that he had noted a second source of injury to the same February 2001 accident.

This application for benefits was initially denied and then allowed on first appeal, but limited to the two year period as set out in the statute to February 2003.

The majority decision of the Appeals Tribunal made several important findings. First, that the great majority of Canadians do retire at age 65 or earlier and secondly, that the scheme in question is one of insurance.

The expert witness called by the worker did testify that a large percentage of workers now intended to work past age 65, but this evidence did not carry the day.

Such a plan of insurance, it was determined, must be based on an actuarially predictive behaviour, which the evidence showed was, for the main, retirement at age 65 or sooner.

The employer maintained a policy of mandatory retirement, which allowed for the conclusion that the worker had no expectation of working past age 65. The Tribunal also noted that the worker had not shown any evidence of the worker’s intent to work past age 65. The majority also concluded that it was unlikely that the worker would have been unemployed or employed at the same level beyond age 65.

The majority decision found no Charter violation and in any event, had it done so, it would have been saved by section 1.

The dissent found a section 15 Charter violation, which was not saved by section 1 and would have allowed benefits until age 71.

An unsuccessful reconsideration was brought. The worker’s Judicial Review application was also dismissed. ⁵ The Divisional Court noted:

Finally, the second part of the test from Kapp is not made out in this case. Section 43(1)(c) does not create a disadvantage based on a stereotypical attribute. It is grounded in the statistically verifiable facts referred to earlier; namely that as of 2008 approximately 90% of Canadian workers stop working at the age of 65 years and 90% of workers injured after the age of 61 return to work within two years.

[35]           Given the evidence of Mr. Gorham, which was accepted by the majority and minority Tribunals, I cannot say that concepts of prejudice or stereotyping are reflected or created by s. 43(1)(c). Therefore, I am satisfied that Tribunal majority was correct in concluding that s. 43(1)(c) did not impose on Mr. Gouthro, either as an individual or as part of a group with a pre-existing disadvantage, prejudice or stereotyping based on age.

The facts of this case did not present the perfect context as the worker’s injury was prior to the Human Rights Code amendments and further the employer maintained a mandatory retirement policy.

How it can be maintained that the Human Rights Code amendment may apply to every aspect of life, save the workers’ compensation regime is, at the very least, bewildering.

The reality is that this issue would most readily and effectively be dealt with by a legislative amendment, as unlikely as may seem. Failing this, the Charter arguments will continue.

Other Jurisdictions

B.C. has amended its workers’ compensation statute to recognize benefits do not cease at age 65, by allowing the worker to defeat the presumption that benefits end at 65.

Alberta allows for workers’ benefits past age 65, where supported by the evidence.

Saskatchewan’s legislation contained a similar term which limited the receipt of benefits to the age of 65. The Queen’s Bench in Zaretzki v Saskatchewan (Workers Compensation Board), a June 1997 decision of Zarzeczny J. found this provision to be a Charter violation, yet one which was saved by section 1 and the reasonable limit qualifier. The Court of Appeal agreed.

The Nova Scotia Workers Compensation Appeals Tribunal in 2002 considered this issue in a case in which the worker was injured at age 66 and was limited to a two year benefit entitlement. The law was found to be offside section 15 but saved by section 1 of the Charter.

The New Brunswick Court of Appeal in Laronde v New Brunswick concluded that the similar provision in the local statute did not violate the s. 15 equality provision.

 

 

 

 

 

 

 

 

1. O. Reg 286/01
2. ONA v Chatham-Kent 2010 88 CCPB 95, 202 LAC (4^th) 1
3. Law v Thames Valley
4. Decision No. 512/06
5. Gouthro v. Workplace Safety and Insurance Appeals Tribunal