HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Burrows
Applicant
-and-
United Association of Plumbers & Pipefitters Local 463
Respondent
DECISION
Adjudicator: Sheri D. Price
Indexed as: Burrows v. United Association of Plumbers & Pipefitters Local 463
APPEARANCES
Christopher Burrows, Applicant ) Self-represented
United Association of Plumbers ) Ron Lebi and Roberto Tomassini,
& Pipefitters Local 463, Respondent ) Counsel
INTRODUCTION
1In this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”), the applicant alleges that the respondent discriminated against him with respect to employment on the basis of age.
2By Case Assessment Direction dated May 30, 2011, the Tribunal decided on its own initiative to convene a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the 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. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success.
3The summary hearing was held by teleconference on November 29, 2011, and the applicant was given an opportunity to explain how he could prove his allegations that the respondent infringed his rights under the Code.
4For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.
BACKGROUND
5The applicant is a plumber and has been a member of the respondent trade union for a number of years. The applicant is dispatched to work with various employers through the union’s hiring hall. When the applicant works for a given employer, that employer compensates the applicant for his work in accordance with the applicable collective agreement and also makes contributions to certain benefit plans which the respondent union has established for the benefit of its members, specifically, a Supplementary Unemployment Benefit (“SUB”) plan, which “tops up” the employment insurance (“EI”) benefits which union members receive during periods of unemployment; and a health and welfare plan which provides Long Term Disability (“LTD”) benefits to members, among other things. The respondent union also has a pension plan, the stated purpose of which is to provide certain retirement and related benefits for and on behalf of all eligible employees who becomes members of the plan and their beneficiaries (“the pension plan”).
6The applicant’s discrimination claim arises out of the administration of the pension plan, the LTD benefits and the SUB Plan. The applicant submits that, at age 55, members of the pension plan may elect to transfer their account balance to a prescribed vehicle at another financial institution. However, upon doing so, they become ineligible for LTD and SUB benefits under the respondent’s health and welfare plan and SUB plan, notwithstanding that they may continue to work as before (as a “re-employed pensioner” who has “retired” under the pension plan, submits the union) and notwithstanding that the employers for whom they work continue to make LTD and SUB plan contributions on their behalf. A “note” on the form which pension plan members use to request a transfer of their pension account balance confirms the applicant’s submission in this regard:
Once a Member who is over 55 transfers his/her member account balance, he/she will no longer be eligible to receive Long Term Disability benefits or payments from UA Local 463’s Supplementary Unemployment Benefit Fund.
7The applicant’s allegation is that the respondent discriminated against him on the basis of age by deeming him ineligible for LTD and SUB benefits based on his decision, after age 55, to transfer his account balance out of the pension plan.
8Although he has never been in a position to claim LTD benefits, the applicant submits that there have been a number of occasions since 2006 when he would have been entitled to collect SUB benefits had he not been rendered ineligible for such benefits based on his decision to transfer funds out of the pension plan.
ANALYSIS
9As I explained during the summary hearing, the Tribunal’s power to hear and determine human rights applications is based on the Code, which, among other things, prohibits discrimination and harassment with respect to employment on the basis of the grounds set out in the Code. The Tribunal does not have the power to remedy unfair treatment, which is not based on a prohibited ground in the Code. Thus, in order to succeed in his Application, the applicant would have to prove not only that he was treated in a disadvantageous manner by the respondent, but that such mistreatment was linked to a prohibited ground in the Code.
10During the summary hearing, the applicant explained that the respondent treated him in a disadvantageous manner when it deemed him ineligible for LTD and SUB benefits on the basis of his decision to transfer funds out of the pension plan. He was unable to establish, however, that he had a reasonable prospect of proving that the consequences which flowed from his decision to transfer monies out of the pension plan constituted disadvantageous treatment based on his age.
11The applicant contends that the disadvantageous treatment in question is linked to his age because he could not have transferred funds out of the pension plan without having first reached age 55. That is true. However, the mere fact that the applicant had to be a certain age in order to transfer funds out of the pension plan is not sufficient to establish that the adverse consequences which flowed from the transfer were based on the applicant’s age. The Tribunal has previously found in a number of cases that disadvantageous treatment which is linked to retirement status, for example, is not necessarily discriminatory, even where employees must be a certain age in order to retire. See Law v Thames Valley District School Board, 2011 HRTO 953; Clarke v. Ontario Teachers’ Pension Plan Board, 2010 HRTO 1123; and Andrews v. Ontario Teachers’ Pension Plan Board, 2011 HRTO 56.
12The fact of the matter is that members do not become ineligible for LTD and SUB benefits because of their age. They become ineligible for these benefits only if they voluntarily choose to transfer funds out of the union pension plan, after age 55. The applicant acknowledges that he could have continued working with his eligibility for LTD and SUB benefits intact had he not chosen to transfer funds out of the pension plan. This makes it clear that the applicant’s ineligibility for the benefits in question was not a disadvantage imposed on him because of his age, but was rather a consequence of the applicant’s voluntary decision to transfer funds out of the pension plan to another financial vehicle.
13I appreciate that the applicant feels that the rules governing his eligibility for LTD benefits and SUB benefits are unfair. The applicant is particularly aggrieved by the fact that the employers he works for are required to make contributions to the SUB and LTD plans on his behalf even though he is ineligible for such benefits. However, as noted above, the Tribunal has no jurisdiction to deal with general claims of unfair treatment. The issue for me to determine is whether the Application has any reasonable prospect of success under the Code. For the reasons given above, I find that the applicant has no reasonable prospect of success in proving that the disadvantageous treatment in question constituted discrimination on the basis of age. The Application is dismissed accordingly.
Dated at Toronto, this 8th day of December, 2011.
”signed by”________
Sheri D. Price
Vice-chair