Clarke v. Ontario Teachers’ Pension Plan Board, 2010 HRTO 1123

James Clarke

Applicant

-and-

Ontario Teachers’ Pension Plan Board

James Clarke

Applicant

-and-

Ontario Teachers Federation

James Clarke

Applicant

-and-

Her Majesty The Queen in Right of Ontario as represented by the Minister of Education

Adjudicator: Brian Sheehan

Date: May 19, 2010

Citation: 2010 HRTO 1123

Indexed as: Clarke v. Ontario Teachers’ Pension Plan Board

APPEARANCES BY

James Clarke, Applicant ) On his own behalf

Ontario Teachers’ Pension ) Elizabeth Brown, Counsel Plan Board, Respondent )

Ontario Teachers’ Federation, Respondent ) Ron Lebi, Counsel

Her Majesty The Queen in Right of Ontario ) as Represented by the ) Sarah Wright, Counsel Minister of Education, Respondent )

Overview

1The applicant filed separate Complaints against each of the respondents with the Ontario Human Rights Commission on January 2, 2008. Those complaints asserted that the pensioner re-employment provisions of the Ontario Teachers’ Pension Plan (“the Plan”) constituted discrimination against him in employment on account of his age contrary to sections 5(1) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

2In accordance with the transition provisions of the Code, the applicant on January 8, 2009, proceeded with these Applications under section 53(5) of the Code. The respondents subsequently filed a Request for an Order seeking the dismissal of the Applications for the failure to disclose a prima facie violation of the Code.

Factual Background - The Applicant’s Employment History

3The applicant is a retired teacher who is currently 63 years old. He began his employment with the North York Board of Education in 1971, at the age of 24.

4The applicant voluntarily retired at the age of 55 on June 30, 2002. Since July 1, 2002, he has received a monthly pension pursuant to the provisions of the Plan.

5Since his retirement he has been employed as an occasional teacher for the York Region District School Board.

The Ontario Teachers Pension Plan

6The Plan is a defined benefit pension plan administrated by the Ontario Teachers’ Pension Plan Board in accordance with the provisions of the Teachers’ Pension Act, R.S.O. 1990 c. T.1, the Pension Benefits Act, R.S.O. 1990, c. P.8, and the Income Tax Act, R.S.C. 1985, c. 1 (5^th Supp.)

7Pursuant to the provisions of the Teachers’ Pension Act the Ontario government, through the Minister of Education and Training, and the executive of the Ontario Teachers’ Federation are the joint sponsoring partners of the Plan. The Ontario Teachers’ Pension Plan Board is an independent corporation responsible for the administration of the Plan.

8Every teacher becomes eligible to become an active member of the Plan. Active members are not entitled to receive any pension benefits from the Plan while they remain employed in education.

9An active member is entitled to retire and commence receiving a pension at the normal retirement age of 65, or at an early retirement date, in accordance with the provisions of the Plan. Upon retiring a teacher is no longer required to make contributions to the Plan and stops acquiring pensionable service.

10There are specific rules applicable to retired teachers in receipt of a pension who are re-employed in education. Such individuals are referred to as “re-employed pensioners” for the purposes of the Plan.

11Rules limiting the re-employment teaching opportunities of teachers in receipt of a pension have existed in various forms since 1946. The wording of section 3(4) of the Plan sets out current pensioner re-employment rules:

Despite subsections (1) (2) and (3) every re-employed pensioner becomes an active member the earlier of:

a. The member’s ninety-sixth day of re-employment in a school year

b. The member’s twenty-first day of employment in education in a school year following three years during each of which the member has been re-employed.

12The effect of the above provision is that a re-employed pensioner is permitted to work as an occasional teacher for 95 days in each of first three years after his or her retirement, and 20 days every subsequent year without any adverse impact on his or her entitlement to receive pension benefits. If, however, the re-employed pensioner exceeds the time limits set out in section 3(4) his or her status is changed to that of an active member of the Plan and his or her entitlement to receive pension benefits is suspended for the duration of that teacher’s re-employment.

13The current pensioner re-employment rules were set in 1989. However, in 2001, the Plan was amended to allow retired teachers to work up to 95 days per school year for an additional 5 years. Specifically, for the years 2001-2002 through 2005-2006, retired teachers were able to work 95 days in addition to the normal three-year 95-day window, without any adverse impact on their status under the Plan. This provision allowed the applicant to work for 95 days for the years 2002-2003 to 2008-2009. In 2009-2010, however, he was entitled to work only 20 days without any impact upon his entitlement to receive pension benefits.

14At the time that the applicant filed his OHRC complaints the pensioner re-employment rules treated pensioners over the age of 71 differently. In particular, due to provisions of the Income Tax Act, a pensioner over the age of 71 could work an unlimited number of days as an occasional teacher without there being any adverse impact on his or her entitlement to receive pension benefits.

15In response to the applicant’s OHRC complaints, an amendment to the Plan was passed on October 23, 2008, providing for the elimination of any distinction between pensioners over and under the age of 71 for the purposes of the pensioner re-employment rules. All pensioners, regardless of age, became subject to the 95-day and 20-day pensioner re-employment rules set out at section 3(4) of the Plan.

Position of the Applicant

16It is the position of the applicant that the restrictions on his ability to work beyond 20 days in a school year are inexorably connected to his age. To retire and receive a pension under the Plan, a teacher has to be least 50 years old. It is thus argued that older retired teachers face restrictions limiting the number of days that they can work as occasional teachers that are not applicable to other occasional teachers.

17It is asserted that there are three groups of occasional teachers:

(i) recently certified teachers who do not have a permanent teaching position, and who are working as occasional teachers;

(ii) non-retired career occasional teachers; and

(iii) retired teachers.

18It is submitted, of those groups, only retired teachers encounter adverse consequences in terms of their income if they work beyond a particular number of days in a school year. Accordingly, it was submitted that retired teachers are systemically treated in a discriminatory manner when compared to the two other groups of occasional teachers.

DECISION

19In evaluating whether a prima facie case has been established, the relevant question is whether accepting all the facts set out in the application as proven, is there any basis to conclude that there had been a violation of the Code. Applying that framework of analysis to the case at hand, even if all the facts set out by the applicant were accepted, there would exist no basis to support a finding that there has been a violation of the Code. Specifically upon reviewing the submissions of the parties, the relevant documentary material and the referred-to authorities, the Tribunal accepts the respondents’ position that any differential treatment experienced by the applicant is related to his employment status and not his age. It is his status, as a retired teacher in receipt of a pension, that potentially triggers the application of the pensioner re-employment rules, and not the fact he is of a particular age.

20The adverse consequences that the pensioner re-employment rules potentially impose upon the applicant have to be placed in the appropriate context. The decision to take early retirement was purely a voluntary choice of the applicant. He could have continued to work and not face any restrictions on the number of days he worked. Additionally, the pensioner re-employment rules do not prevent the applicant from being fully employed in another field other than education. More importantly, there is no restriction on the applicant working, as an occasional teacher, beyond 20 days in any particular school year. He is free to do so. The pensioner re-employment provisions only dictate that upon working in excess of 20 days, his status under the Plan is altered to that of an active member and his entitlement to continue to receive pension benefits is suspended.

21It is, however, clear that pensioners are subjected to restrictions on the number of days they work that are not applicable to the other identified groups of occasional teachers. However, as suggested, any differential treatment experienced by the applicant arising out of the application of the pensioner re-employment rules is related to his employment status, not his age. This point is attested to when his circumstances are compared with that of a career occasional teacher. That teacher could be the same age, if not older, than the applicant. Yet there are no restrictions on the number of days that teacher could work in a school year. Only if that teacher altered his or her employment status and decided to retire would the pensioner re-employment rules become relevant for that teacher. It is the employment status of the individual, not his or her age, which is relevant for the purposes of the pensioner re-employment rules.

22Differential treatment on account of employment status is not a protected ground for the purposes of the Code. Related to this point, the Supreme Court of Canada in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, held that employment status is not an analogous ground warranting equal protection from discrimination for the purposes of section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”).

23The applicant relied on Bigsby v. Alberta (Pensions Administration), 2005 ABCA 52. The facts in that case involved a provincial regulation which dictated the suspension of pension plan benefits to an employee under the age of 71 who became re-employed with an employer participating in a relevant pension plan. The same pensioner re-employment rules did not apply to individuals over the age of 71. The Alberta Court of Appeal upheld a lower court decision finding that the relevant regulation breached section 15(1) of the Charter. Any relevance of Bigsby to this case evaporated with the October 23, 2008 amendment to the Plan, eliminating the distinction between the application of the pensioner re-employment rules based on the age of 71.

24The applicant, as a retired employee, has to be at least 50 years of age, and as such is part of a group that is defined in part by age. However, it has to be noted that retired employees inevitably are going to be older employees, as pension plans are premised on entitlement to retirement income being associated with accumulated years of credited years of pensionable service. Moreover, section 25(2.1) of the Code recognizes that it is permissible for a pension plan to make distinctions based on age, provided the pension plan is in compliance with the relevant provisions of the Pension Benefits Act.

25Therefore, it is concluded the Applications fail to establish a prima facie violation of the Code, and are dismissed.

Dated at Toronto this 19^th day of May, 2010.

“Signed by”

Brian Sheehan

Member