Constantine Arapis v. Ontario Teachers’ Federation, 2011 HRTO 2181

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Constantine Arapis

Applicant

-and-

Ontario Teachers’ Federation, Ontario Teachers’ Pension Plan Board and

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

Respondents

DECISION

Adjudicator: Brian Sheehan

Date: December 5, 2011

Citation: 2011 HRTO 2181

Indexed as: Arapis v. Ontario Teachers’ Federation

APPEARANCES BY

Constantine Arapis, Applicant ) Self-Represented

Ontario Teachers’ Pension Plan Board ) Elizabeth Brown and ) Sean Sells, Counsel

Ontario Teachers’ Federation ) Murray Gold, Counsel

Her Majesty the Queen in Right of Ontario ) As Represented By the Minister of Education ) Ron Robinson, Counsel

INTRODUCTION

1This Application was filed on March 16, 2010 under section 34 of the Human Rights Code R.S.O. 1990 c.H.19, as amended (the “Code”).

2The applicant alleges the pensioner re-employment provisions of the Ontario Teachers’ Pension Plan discriminated against him in employment on the basis of his age contrary to sections 5(1) and 9 of the Code.

3By a Case Assessment Direction dated November 9, 2010, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. Specifically, the Tribunal made the following direction:

It appears that allegations similar to those made in the Application were considered and decided upon in Clarke v. Ontario Teachers’ Pension Plan Board, 2010 HRTO 1123. In that case, the applicant claimed that restrictions on his ability to work beyond 20 days in a school year were inexorably connected to his age. He argued that, because a teacher must be at least 50 years of age in order to retire and receive a pension, older retired teachers face restrictions limiting the number of days they can work as occasional teachers not applicable to other occasional teachers. The Tribunal dismissed the application for failure to state a prima facie case.

In my opinion, the most appropriate procedure, given the issues raised in the Application and the Tribunal's decision in Clarke, is to hold a summary hearing on whether the Application has a reasonable prospect of success.

4The Summary Hearing was conducted, by way of a teleconference, on November 21, 2011.

DECISION

5The Application does not have a reasonable prospect of success and it is dismissed.

ANALYSIS

6The pensioner re-employment provisions are applicable to retired teachers in receipt of a pension under the Ontario Teachers’ Pension Plan (“the Plan”) who are re-employed in education. At the time of this Application, as was the case in Clarke, the pensioner re-employment provisions of the Plan stipulated that a retired teacher was permitted to only work as an occasional teacher for 95 days in each of the 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 the re-employed pensioner exceeded those time-limits, his or her status changed to that of an active member of the Plan, and his or her entitlement to receive pension benefits was suspended for the duration of his or her re-employment.

7In Clarke, the applicant asserted that restrictions associated with the pensioner re-employment provisions were inexorably connected to his age. Specifically, it was asserted that older retired teachers (the minimum retirement age being 50) faced restrictions limiting the number of days they could work which were not applicable to other occasional teachers.

8The Tribunal in Clarke determined that any differential treatment experienced by retired teachers, as a result of the pensioner re-employment provisions, was not necessarily due to their age but to their employment status. Specifically, the Tribunal noted at paragraphs 21 and 22 of the decision:

21It is, however, clear that pensioners are subject to restrictions on the number of days they work that are not applicable to 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 purpose 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 (Can LII), [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”).

9Emphasizing the adverse impact that the pensioner re-employment provisions had on his family’s financial well-being, the Applicant submitted it was unfair that there were restrictions on the number of school days per year he could be employed, while no such restrictions were applicable to non-retired career occasional teachers. It was also suggested that it would better serve the Ontario education system as a whole, if experienced teachers such as him were able to fill the need for occasional teachers without limits being imposed.

10It is not the role of this Tribunal to evaluate the appropriateness of the pensioner re-employment provisions according to some broad fairness concept or from an educational policy perspective.

11The only relevant issue for this Tribunal is whether the provisions of the Plan in the context of the facts alleged by the Applicant in some manner constitute a violation of the Code. As outlined in Clarke and affirmed in Andrews v. Ontario Teachers’ Pension Plan Board, 2011 HRTO 56, this Tribunal has determined they do not; as any differential treatment experienced by a retired teacher such as the applicant is connected to his employment status, and not, his age. The applicant, in his written and oral submissions failed to identify any material basis to distinguish the facts associated with his Application and those in Clarke. Additionally, the applicant further failed to offer any rationale for the Tribunal to deviate from the reasoning in Clarke.

12Accordingly, there is no reasonable prospect the Application will succeed and it is dismissed.