Clare v. Ontario, 2008 HRTO 194

Human Rights Tribunal of Ontario

B E T W E E N:

Peter Clare Applicant

-and-

Her Majesty the Queen in Right of Ontario and Workplace Safety and Insurance Board Respondents

INTERIM DECISION

Adjudicator: David A. Wright Date: October 24, 2008 Citation: 2008 HRTO 194 Indexed as: Clare v. Ontario

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto ON M7A 2C7 Phone (416) 326-1312 / 1-866-598-0322 Fax (416) 326-2199 / 1-866-355-6099 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

WRITTEN SUBMISSIONS BY

Her Majesty the Queen in Right of Ontario, Respondent ) Matthew Horner, Counsel Workplace Safety and Insurance Board, Respondent ) Gurjit Brar, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging that the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. ("WSIA") discriminates against him on the basis of age. He alleges that the WSIA is "exempt" from the Ending Mandatory Retirement Act Statute Law Amendment Act, S.O. 2005, c. 29 ("Ending Mandatory Retirement Act"), with the result that his benefits were ended at age 65 pursuant to s. 43 of the WSIA.

2The applicant originally named the Premier of Ontario, the Minister of Labour, and the Speaker of the Legislative Assembly as respondents. The respondent Crown has asked that the style of cause be amended to "Her Majesty the Queen in Right of Ontario", which includes all three respondents. The applicant was invited to make submissions on this request and did not do so. As this is a challenge to legislation, the proposed change is appropriate. The style of cause is amended as requested.

3In their Responses, which have not yet been delivered to the applicant by the Tribunal, the respondents raise an additional issue, which puts into question the Tribunal's jurisdiction (power) to hear and decide the issues raised in the Application. Section 47 (2) of the Code states as follows:

Where a provision in an Act or regulation purports to authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act. [emphasis added]

4Section 2.1 (1) of the WSIA (which was added to it in the Ending Mandatory Retirement Act) reads as follows:

A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it, that requires or authorizes a distinction because of age applies despite section 1 and 5 of the Human Rights Code.

5The respondents argue that because of s. 47 of the Code and s. 2.1 (1) of the WSIA, the Code does not apply to the challenged legislation and the Tribunal has no power to decide whether it is discriminatory.

6The Responses will be delivered to the applicant at the same time as this decision. In his Reply under Rule 9, the applicant should address the issue of the Tribunal's jurisdiction to hear the Application and provide his position on the issues raised by the respondents.

7Following the Reply deadline, the Tribunal will consider whether the Application should be dismissed under Rule 13.1 of the Tribunal's Rules of Procedure, which permits it to dismiss all or part of an application that is outside its jurisdiction.