Lambe v. OMERS Administration Corporation, 2009 HRTO 1135

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hugh Lambe

Applicant

-and-

OMERS Administration Corporation

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 24, 2009

Citation: 2009 HRTO 1135

Indexed as: Lambe v. OMERS Administration Corporation

1The purpose of this Interim Decision is to schedule a half-day hearing to hear oral submissions from the parties on three preliminary issues.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 19, 2009, which alleges that the respondent discriminated against him with respect to employment and services because of his age.

3Specifically, the applicant alleges that the respondent’s non-pension benefits plan (i.e. health and dental benefits) is discriminatory because former employees over the age of 55 are treated differently in that some receive non-pension benefits and some do not. He states that in order to be eligible to receive non-pension benefits, an employee must have 10 consecutive years of service, and begin receiving a pension from the respondent’s primary pension plan in the month after the termination of his or her employment. He states that he began receiving his pension from the respondent’s primary pension plan more than one month after the respondent terminated his employment, which rendered him ineligible to receive non-pension benefits.

4The respondent filed a Response on July 2, 2009, which requests early dismissal of the Application on the basis that the applicant signed a full and final release with respect to the same matter.

5Specifically, the respondent alleges that it terminated the applicant’s employment effective March 31, 1999, and the applicant entered into a severance agreement with the respondent and signed a Release dated March 23, 2002, which released the respondent from all claims set forth in the Release, including claims under human rights legislation.

6The respondent further alleges that the applicant has not provided a reasonable excuse for the excessive delay in filing his human rights Application. The respondent states that it terminated the applicant’s employment more than 10 years ago, and reached a severance agreement with him more than seven years ago.

7The applicant filed a Response to a Request for an Order on July 16, 2009, which states that the respondent’s Request for early dismissal of the Application should be denied because the Release did not release the respondent from claims for non-pension benefits, and even if it did, such a release is null and void because it is contrary to the Code. The applicant further states that he did not file his Application out of time because the discrimination is ongoing.

8The respondent and applicant both filed further submissions on these issues, which repeat and clarify their positions.

9In my view, the Application raises a third preliminary issue: whether the Application discloses a prima facie case of discrimination. The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. The burden only shifts to the respondent to provide a non-discriminatory explanation for its actions if the applicant establishes a prima facie case of discrimination: see Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at para. 6 and Jagait v. IN TECH Risk Management, 2009 HRTO 779, at paras. 18 and 19.

10In Jagait, the Tribunal considered whether to dismiss the Application after hearing testimony from the applicant. In other cases, as with the present case, the Tribunal may consider the question at a preliminary stage, before the applicant has presented evidence. In such circumstances, the threshold test will be the same, but there will be no evidence before the Tribunal. In order to maintain the Application, it is sufficient at this stage if the applicant raises allegations which, if accepted as true, would be enough to establish to establish a violation of the Code: see Arias, supra, at para. 7.

11The main allegation of discrimination in the Application is that former employees over the age of 55 are treated differently in that some receive non-pension benefits and some do not. According to the applicant, the distinction is based on whether or not the employee began receiving a pension from the respondent’s primary pension plan in the month after the termination of his or her employment. The parties should be prepared to address whether this discloses a prima facie case of discrimination on the basis of age with respect to employment and services.

12In the circumstances, it is fair, just and expeditious at this stage of the proceeding to hear submissions from the parties on three preliminary issues:

(a) Should the Application be dismissed on the basis that the applicant signed a Release?

(b) Should the Application be dismissed on the basis that it fails to raise allegations that disclose a prima facie case of discrimination?

(c) Should the Application be dismissed on the basis that it was not filed in a timely manner pursuant to section 34 of the Code?

13Rule 3.5 of the Tribunal’s Rules of Procedure states that no application that is within the jurisdiction of the Tribunal will be finally disposed of without affording the parties an opportunity to make oral submissions. Accordingly, the Registrar will schedule a half-day hearing to hear submissions from the parties with respect to these issues.

14If any party wishes to rely on case law or other supporting material at the hearing, they are directed to deliver this material to each other and the Tribunal by no later than two weeks before the date of the hearing.

15I am not seized of this matter.