Daniel Malloy v. OPSEU Pension Trust, 2010 HRTO 2304

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Malloy

Applicant

-and-

OPSEU Pension Trust, Ontario Public Service Employees Union and Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government Services

Respondents

DECISION

Adjudicator: Brian Cook

Date: November 19, 2010

Citation: 2010 HRTO 2304

Indexed as: Malloy v. OPSEU Pension Trust

APPEARANCES BY

Daniel Malloy, Applicant ) Self-represented

OPSEU Pension Trust, Respondent ) Ari Kaplan, Counsel

Ontario Public Service ) Hugh O’Reilly, Counsel Employees Union, Respondent )

Her Majesty the Queen in Right of Ontario ) as represented by the Ministry of ) Stuart McMahon, Counsel Government Services, Respondent )

1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination on the grounds of age in relation to the operation of a pension fund of which he is a member. The respondents submit that the Application should be dismissed as a result of section 25(2.1) of the Code which reads as follows:

25(2.1) The right under section 5 to equal treatment with respect to employment without discrimination because of age is not infringed by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act, 2000 and the regulations thereunder.

2There is no dispute that the pension plan complies with the Employment Standards Act, 2000, S.O. 2000, c. 41, and the Regulations made pursuant to that Act.

3Pursuant to a Case Assessment Direction dated July 20, 2010, the Tribunal scheduled a telephone conference call summary hearing. The Case Assessment Direction noted that the authority for this is Rules 19A and 19A.2 of the Tribunal’s Rules of Procedure, which read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4The purpose of the summary hearing was to determine if there is no reasonable prospect that the Application or part of the Application will succeed.

Background

5At the time the Application was filed, the applicant was 44 years of age. He had been a member of the pension plan for 20 years. The pension plan permits members who are 60 years of age and who have 20 years of eligible service to retire and take an unreduced pension. Because the applicant is 44 years old and not 60 years old, he cannot retire and take an unreduced pension. The applicant notes that the plan accordingly treats people differently because of age and he submits that this differential treatment is discriminatory and contrary to the Code.

6The applicant addressed section 25(2.1) of the Code. He submits that while this section may operate to permit the differential treatment he has received, the pension plan is nevertheless contrary to the spirit of the Code.

7The applicant relies in particular on the Ontario Human Rights Commission’s “Policy on discrimination against older people because of age”. That policy discusses age discrimination in regard to pension plans and states in part:

The protections in the Code extend to pension and benefit plans. As well, other grounds of discrimination such as disability and marital status are often relevant when considering pension benefits.

Section 25(2) of the Code states that rights are not infringed by pension and benefit plans that comply with the Employment Standards Act and regulations. O. Reg. 286/01 under the Employment Standards Act regulates employment-related disability, medical, dental, drug, life insurance and pension plans. This regulation defines “age” as “any age of 18 years or more and less than 65 years”. This means that pension and benefit plans that differentiate based on age 65 cannot be challenged under the Code. The OHRC has publicly expressed its concerns regarding these provisions and recommended legislative change. The OHRC would encourage employers and unions to nevertheless develop and maintain pension and benefit policies and programs that comply with the spirit of the Code, do not use age-based criteria and are based on bona fide requirements.

The Regulation also permits other age-related distinctions in the provision of pension and benefit plans, for example, where age-related distinctions in contribution rates are made on an actuarial basis.

Sick leave plans that make benefits available based on age have been found to be discriminatory. Reduced pension benefits for early retirees have been found not to be discriminatory where the actuarial present value of reduced pensions for early retirees is at least equal to the present value of the deferred pension for those who wait until the age of eligibility for full pensions. Similarly, basing eligibility for pension benefits on reaching a certain age will not likely be considered discriminatory.

8The policy indicates that the Commission encourages employers and unions to develop and maintain pension plans that do no use age-based criteria. However, the policy also recognizes that the provisions of the Code that currently are in effect mean that pension plans that do differentiate between members on age-based criteria cannot be challenged under the Code, providing that the plan is otherwise in compliance with the applicable legislation governing pension plans.

9Based on the submissions of the applicant and the provisions of the Code dealing expressly with the issues raised in the Application, it is my view that there is no reasonable prospect that the applicant will succeed in respect of the Application. I therefore find that the Application must be dismissed.