HUMAN RIGHTS TRIBUNAL OF ONTARIO
BETWEEN:
Raymond Fontaine
Applicant
- and -
Workplace Safety and Insurance Board
Respondent
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Fontaine v. Workplace Safety and Insurance Board
Raymond Fontaine, Applicant Self-represented
Workplace Safety and Insurance Board, Respondent Gurjit S. Brar, Counsel
1In this Application, filed under subsection 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges discrimination on the basis of age.
2The parties participated in an oral hearing before the Tribunal on May 14, 2010 in which the applicant provided oral submissions.
OVERVIEW
3The applicant suffered a workplace injury in 2004, when he was 63 years old. The Workplace Safety and Insurance Board (the “WSIB”) concluded that the applicant would be indefinitely unable to return to work.
4The WSIB awarded the applicant payments for lost wages for a period of two years from the date of the injury. Those benefits ended in 2006, when the applicant was aged 65.
5The applicant maintains that, but for the workplace injury, he would have continued working after 2006. He argues that the WSIB’s decision and the termination of payments at age 65 create a distinction based on age and constitute discrimination contrary to the Code.
6The respondent has filed a Response to a Request and a Request for an Order During Proceedings. The respondent claims that the Tribunal does not have the requisite jurisdiction (power to decide) to rule on the Request. It also maintains that the WSIB’s decision was made in accordance with the provisions of the Workplace Safety and Insurance Act, 1997, S.O. 1997, ch. 16, Sch A, as amended (the “Act”), which apply notwithstanding the Code.
7The respondent argues that the decision to grant benefits to the applicant for a limited two-year period was made in accordance with paragraph 43(1)(c) of the Act. That provision states:
43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, …
(c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;
8The respondent also bases its argument on section 2.1 of the Act, which states:
2.1 (1) 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 sections 1 and 5 of the Human Rights Code.
ANALYSIS
9I recognize that the circumstances are very frustrating for the applicant. If the workplace injury had not occurred, he states he would still be earning a salary. Unfortunately, he now finds himself in a situation in which he can neither work nor receive compensation for his loss of income.
10The Tribunal’s powers are limited to those set out in the Code. It does not have a general power to address claims of unfairness. The Tribunal can simply determine whether or not the provisions of the Code have been complied with.
11In these circumstances, the Legislature has decided to exempt from review under the Code any age-based distinction contained in the Act. The effect of section 2.1 of the Act is to permit distinctions based upon age, despite the provisions of the Code.
12As the applicant suggested during his oral submissions, there may be a number of ways to challenge the constitutionality of a statute or a decision made in accordance with a statute. However, in this case, the Legislature has expressly limited the Tribunal’s powers in regards to the age-based distinctions in the Act.
13The Application is therefore dismissed. Based on section 2.1 of the Act, the Tribunal cannot conclude that the distinctions made on the basis of age, including the two-year limit for those aged 63 and over, are discriminatory according to the Code.
14In light of this conclusion, it is not necessary for me to determine whether or not the application relates to a service for the purposes of the Code.
Dated at Toronto, this 26th day of May, 2010.
”signed by”________________
Michelle Flaherty
Vice-chair