Rorabeck v. Sears Canada, 2009 HRTO 1388

Human Rights Tribunal of Ontario

B E T W E E N:

Peter Rorabeck

Applicant

-and-

Sears Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: September 2, 2009

Citation: 2009 HRTO 1388

Indexed as: Rorabeck v. Sears Canada

1This is an Application, filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that his employer discriminated against him on the basis of age.

2On August 6, 2009, the respondent filed a Request for an Order During Proceedings (“Request”) seeking an early dismissal of the matter on the basis that the Application is premature. The respondent also asks that the hearing of this matter be adjourned and that the two days on which the hearing was scheduled to take place be used instead for an oral hearing of the Request.

3The applicant has not responded to the Request and the time for doing so has now elapsed.

BACKGROUND

4The respondent provides benefit coverage and defined-benefit pension payments (collectively, “Post-Retirement Benefits”) to eligible employees upon retirement. Post-Retirement Benefits include health, insurance and dental benefits set out in the respondent’s Health and Benefit Plan (“Plan”).

5Prior to January 1, 2009, in order to be eligible to receive Post-Retirement Benefits under the Plan, employees must have been hired before January 1, 2001 and must, at the date of retirement, be either:

a. at least 55 years old and have a minimum of 20 years of full-time continuous service; or

b. at least 65 years old and have a minimum of 10 years of full-time continuous service.

6On February 5, 2007, employees received written notice that the Plan eligibility criteria would be amended. The amendments to the Plan were effective January 1, 2009.

7As of January 1, 2009, employees are eligible for Post-Retirement Benefits only if they have achieved all of the Plan’s eligibility criteria (including the age requirements) by December 31, 2008.

8The applicant claims that the amendments to the Plan discriminate against him on the basis of age. He is currently 48 years old and has been a full-time employee of the respondent for the past 28 years.

9But for the amendments to the Plan, he expected to be eligible to receive Post-Retirement Benefits upon his retirement. In light of the amendments to the Plan eligibility criteria and because he had not reached 55 years of age by December 31, 2008, the applicant is no longer eligible to receive Post-Retirement Benefits upon his retirement. He argues that the amendments to the Plan and the institution of a timeframe by which employees must have reached a certain age constitute discrimination under the Code.

ANALYSIS

Request for adjournment

10The Tribunal is committed to the fair, just and expeditious resolution of all matters brought before it. In my view, it is appropriate to determine the respondent’s request for an early dismissal of the Application as a preliminary matter. However, I do not feel it is necessary or expeditious for the Request to be dealt with by way of an oral hearing. In my view, I can fairly determine the Request based on the respondent’s written submissions.

11The respondent’s request that the hearing dates be adjourned is therefore denied.

Is the Application Premature?

12Section 34 of the Code states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

13The respondent argues that the Application is premature because:

a. as the applicant has neither applied for nor been denied benefit coverage, he has not yet been affected by the amendments to the Plan and has not suffered any loss or damages; and

b. the applicant’s eligibility for Post-Retirement Benefits under the Plan is contingent upon future events (the applicant’s retirement, his continued employment, and the assumption that the Plan will not be further amended).

14Effectively, the respondent urges me to find that, for the purposes of section 34 of the Code, the “incident to which the application relates” is the applicant’s retirement. According to the respondent, any alleged discrimination would only be triggered upon the applicant’s retirement and it would be premature for the Tribunal to consider the allegations before that date.

15This case raises the same issues as Boyer v. Sears Canada, 2009 HRTO 1084. Both matters involve the same respondent and relate to the January 1, 2009 amendments brought to the respondent’s Plan. In both cases, the applicants allege that the Plan’s revised eligibility criteria discriminate against employees on the basis of age.

16In Boyer, the respondent raised a preliminary objection and sought to have the Application dismissed on the basis of timeliness. In that case, however, the respondent took a position that runs contrary to the arguments it advances here. In Boyer, the respondent argued that the incident which gave rise to the alleged discrimination (and that triggered the one-year limitation period) was the notice the respondent provided to employees on February 7, 2007.

17In this case the respondent is now contending that the incident which may give rise to an application is each individual employee’s retirement.

18In Boyer, I concluded that, for the purposes of section 34 of the Code, the incident giving rise to the alleged discrimination occurred on January 1, 2009, when the change in the eligibility criteria for the Plan came into effect. I held that the Application in that case had been filed within the limitation period.

19In my view, the same principle applies in this case. The treatment complained of in the Application is the change in the eligibility criteria and, more specifically, the imposition of a date by which employees much reach a certain age in order to remain eligible for Post-Retirement Benefits.

20The respondent relies on the British Columbia Court of Appeal’s decision in International Forest Products Ltd. v. Sandhu, 2008 BCCA 204, for the proposition that it is the applicant’s exit from the workplace (not a change in the employer’s approach to offering a particular benefit) which triggers a claim of discrimination.

21In my view, Sandhu is distinguishable from this Application. Briefly, the human rights complaint in Sandhu arose out of a partial plant closure. The applicants were employees in receipt of worker’s compensation or disability benefits and, as a result, were not actively working for the respondent. The applicants alleged that they were treated differently from active employees in that, as a result of the terms of an agreement between the employer and the union, non-active employees were not immediately offered the same severance options as active employees upon the partial plant closure. The severance options were, however, made available to non-active employees upon their return to work.

22Importantly, the issue of prematurity did not arise before the Court of Appeal. Rather, the Court held that the applicants had failed to establish a prima facie case of discrimination and found that the differential treatment did not arise out of a Code-related ground but stemmed from a “fair and commercially sensible distinction between employees on the basis of availability of work.”

23In my view, the B.C. Court of Appeal’s decision in Sandhu is of no assistance. The factual conclusion that, in particular circumstances, employees’ return to work triggers access to severance benefits has no bearing on whether a claim, made in a different scenario, is premature.

24The respondent also argues that, because of contingencies, it would not be appropriate for the Tribunal to order that the applicant receive Post-Retirement Benefits upon retirement.

25In my view, the Tribunal is nevertheless in a position to determine whether the amendments to the Plan are discriminatory under the Code. While I do not dispute that the applicant in this case has not yet sustained any monetary losses, the Tribunal’s remedial powers under section 45.2(1) are broad. For example, it would be open to the Tribunal to consider an award for injury to dignity, feelings and self-respect or to make an order directing the respondent to do anything that, in the opinion of the Tribunal, it ought to do to promote compliance with the Code.

26I conclude that it is appropriate to proceed to a hearing of the merits of the Application. The respondent’s Request for the early dismissal of the matter is denied.

27I am not seized of this matter.