Cole v. Thames Valley District School Board, 2009 HRTO 1334

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Cole

Applicant

-and-

Thames Valley District School Board

Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: August 27, 2009 Citation: 2009 HRTO 1334 Indexed as: Cole v. Thames Valley District School Board

1The Application was filed on March 2, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination in employment on the grounds of age, contrary to section 5 of the Code. The applicant, who is about to turn 65 years of age, is an employee of the respondent, the Thames Valley District School Board. The Application alleges that the respondent has indicated that it will not provide benefit coverage to the applicant if he chooses to continue employment past the age of 65.

2The respondent requests in its Response and in an accompanying Request for an Order during Proceedings (the “Request”) that the Tribunal dismiss the Application for lack of jurisdiction. The respondent argues that the Code and the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the “ESA”) do not require employers to provide benefits past the age of 65 and that the law is clear that that it is not age discrimination for benefit coverage to cease at age 65.

3The Registrar will schedule a conference call hearing to hear submissions on the respondent’s request to dismiss the Application. The parties should be prepared to address whether the Application should be dismissed on the basis that it raises issues outside the Tribunal’s jurisdiction and, if it is within the Tribunal’s jurisdiction, whether the Code and the ESA provide a complete legal defense to the Application.

4The following directions shall apply to the conference call and submissions on the issues:

(a) The respondent shall provide complete written submissions, including caselaw, legal argument and any supporting documentation or facts on the request to dismiss, by no later than three weeks before the date scheduled for the conference call.

(b) The applicant shall provide his written submissions in response, including caselaw, legal argument and any supporting documentation or facts, by no later than two weeks before the date scheduled for the conference call.

(c) The respondent may reply to the applicant’s submissions by no later than one week before the date scheduled for the conference call.

5The written submissions must be delivered to the other party as well as filed with the Tribunal. The parties must also indicate whether they wish to call any oral evidence on the issue and if so, describe the nature of the evidence.

6I am not seized of this matter