HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hugh Lambe
Applicant
-and-
OMERS Administration Corporation
Respondent
RECONSIDERATION DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Lambe v. OMERS Administration
WRITTEN SUBMISSIONS BY
Hugh Lambe, Applicant ) Self-represented
OMERS Administration Corporation, ) Adrian Miedema, Counsel
Respondent )
INTRODUCTION
1The purpose of this Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2010 HRTO 2200, which dismissed the Application.
BACKGROUND
2The applicant was employed by the respondent from 1988 to 1999. On March 31, 1999, when the applicant was 55 years old, the respondent terminated his employment and offered him a severance package.
3At the time of the applicant’s dismissal, the section in the respondent’s Employee Handbook on retirement benefits provided that an employee who retired from the company with a minimum of ten years of active service, and was entitled to receive a normal, early or disability pension, was also entitled to continue to receive certain employee benefits (i.e. medical, dental and other non-pension benefits). The company’s pension plan provided for early retirement options from the age of 55.
4The applicant subsequently accepted a severance package, and signed and returned a release to the respondent in March 2002
5In August 2003, when the applicant was 60 years old, he sent the respondent a signed Application for Retirement Pension – Deferred Members, which requested that he start receiving an early retirement pension the following month. The applicant began receiving his pension benefits effective September 1, 2003, but did not receive retirement benefits.
6The applicant turned 65 years of age in April 2008. He sent a letter of complaint dated December 20, 2008 to the respondent, which proposed that the respondent change its eligibility requirements for receipt of retirement benefits.
7The respondent sent the applicant a letter dated January 22, 2009 in response, which stated in part:
As you are aware, the benefits provided to eligible OMERS staff include the eligibility to receive post-retirement (non-pension) benefits. However, in order to be eligible for post-retirement benefits an OMERS employee must:
Have 10 years of consecutive service as an OMERS employee prior to retirement, and
Must commence a pension from the OMERS Primary Pension Plan on the next month following termination of employment (i.e. start an immediate pension following termination and therefore must meet the minimum age requirement of 55 years).
The letter then rejected the applicant’s proposed changes to the eligibility requirements.
8The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 19, 2009, which alleged that the respondent discriminated against him with respect to employment and services because of his age.
9Specifically, the applicant alleged that the requirement that an employee commence a pension in the next month following termination of employment in order to receive retirement benefits is discriminatory because former employees over the age of 55 are treated differently in that some receive retirement benefits and some do not. He stated that he should have been receiving retirement benefits from the time he was receiving his pension benefits.
10The respondent filed a Response on July 2, 2009, which requested early dismissal of the Application because, among other things, the Application was not filed in a timely manner pursuant to section 34 of the Code.
11A hearing took place over half a day. The Tribunal’s Decision dismissed the Application because it was not filed in a timely manner, and the applicant failed to establish that his delay in filing the Application was incurred in good faith.
12Specifically, the Tribunal found that the last alleged incident of discrimination occurred on September 1, 2003, when the applicant began receiving pension benefits, but did not receive retirement benefits because he did not meet the eligibility requirements, and that his delay in filing his Application with the Tribunal was not incurred in good faith.
13On November 30, 2010, the applicant filed a Request for Reconsideration of the Decision, and on December 14, the respondent filed a Response.
RELEVANT LAW, RULE AND PRACTICE DIRECTION ON RECONSIDERATION
14Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal Rules.
15Rule 26.5 of the Tribunal’s Rules of Procedure states that reconsideration will not be granted unless the Tribunal is satisfied that:
a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
16The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states, in part,:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal.
SUBMISSIONS
17In his Request for Reconsideration, the applicant submitted that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5(c).
18The applicant’s submissions basically repeated the submissions that he made prior to the Decision dismissing his Application, but omitted some previous facts and arguments, emphasized different facts, and restructured his arguments.
19In essence, the applicant stated that his Application was filed on time because the only incident of discrimination occurred on January 22, 2009, when the respondent denied him retirement benefits. The applicant reasoned that, since the second eligibility provision set out in the respondent’s January 22, 2009 letter did not exist prior to 2008, there was could not have been a discriminatory incident in 2003.
20The respondent submitted that the Request for Reconsideration should be dismissed because the applicant is attempting to reargue the case by essentially presenting the same facts and making the same arguments that he did at the hearing.
DECISION
21I agree with the respondent that the applicant’s Request for Reconsideration is basically an attempt to reargue the case. Furthermore, the applicant has not established that the Decision is in conflict with established jurisprudence or Tribunal procedure, or that the proposed reconsideration involves a matter of general or public importance. For these reasons alone, I would dismiss the Request for Reconsideration.
22I would add that I do not agree with the applicant’s restructured arguments for the following two reasons.
23First, the section on retirement benefits in the respondent’s Employee Handbook, which was in effect at the time of the applicant’s dismissal on March 31, 1999, and when the applicant began receiving pension benefits on September 1, 2003, did, in fact, include the second eligibility provision. The section stated:
OMERS policy (as an employer) requires that all employees retire at age 65. Retirement will be effective on the first day of the month following the employee’s 65th birthday. The OMERS Pension Plan also provides for early retirement options from age 55.
(...)
Retirement Benefits
An employee who retires from OMERS with a minimum of ten years of OMERS active service and is entitled to an OMERS normal, early or disability pension is also entitled to the continuation of certain employee benefits.
24Although the wording in the Employee Handbook and the respondent’s January 22, 2009 letter are different, they have the same basic eligibility requirements for retirement benefits.
25Furthermore, the applicant’s argument that the second eligibility provision did not exist prior to 2008 contradicts what he stated in his Application. On page 6 of the narrative of his Application, he stated:
For the time I was receiving an OMERS’ pension up to the age 65, the second provision of the plan was discriminating against me…. As a result, the second provision is inapplicable to me both before and after age 65. Because I meet the first provision, I should have been receiving non-pension benefits from the time I was receiving my OMERS pension.
26In other words, the applicant’s allegation was that from September 1, 2003 (when he began receiving his pension benefits) to April 2008 (when he turned 65 years old), the second provision discriminated against him.
27Second, the applicant’s argument that there could not have been a discriminatory incident in 2003 contradicts the theory of discrimination that the applicant put forth at the hearing. In his oral submissions, the applicant’s basic theory of discrimination was as follows. An employee whose employment is terminated at age 65 automatically receives retirement benefits, while an employee whose employment is terminated before age 65 does not automatically receive retirement benefits. In this situation, there is discrimination between people of different ages.
28This theory of discrimination would have applied to the applicant’s circumstances on September 1, 2003.
29Furthermore, the applicant’s argument contradicts what he stated in his Application. In addition to the statement in his narrative mentioned in paragraph 25 above, the applicant stated on page 4 of Form 1-A of his Application that he “experienced discrimination” because of the “non-receipt of non-pension benefits upon receiving a pension.” In other words, his allegation was that the respondent’s failure to provide him retirement benefits effective September 1, 2003 was discriminatory.
ORDER
30The Request for Reconsideration is dismissed.
Dated at Toronto, this 7th day of February, 2011.
“Signed by”
Ken Bhattacharjee
Vice-chair