Andrews v. Ontario Teachers’ Pension Plan Board, 2011 HRTO 56

Benjamin Andrews

Applicant

-and-

Ontario Teachers’ Pension Plan Board, Ontario Teachers Federation and

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

Respondents

DECISION

Adjudicator: Brian Sheehan

Date: January 13, 2011

Citation: 2011 HRTO 56

Indexed as: Andrews v. Ontario Teachers’ Pension Plan Board

APPEARANCES

Benjamin Andrews, Applicant ) Paul B. Wessenger,

) Counsel

) Elizabeth Brown,

Ontario Teachers’ Pension Plan Board ) Sean Sells,

) Counsel

Ontario Teachers’ Federation ) Ari Kaplan, Counsel

Her Majesty the Queen in Right of Ontario ) Ron Robinson

As Represented By the Minister of Education ) Sarah Wright, ) Counsel

INTRODUCTION

1This Application was filed on December 2, 2009 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 (“the 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 August 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:

The Tribunal has reviewed the Application, Responses, Reply and Requests for Order in this Application alleging that the re-employment provisions of the Ontario Teachers’ Pension Plan discriminated against him on the basis of age. The respondents requested deferral pending decisions in an application under s.53(5) of the Human Rights Code, R.S.O. c. H.19, as amended. The Tribunal has now issued its decision in those applications, Clarke v. Ontario Teachers’ Pension Plan Board, 2010 HRTO 1123 in which they were dismissed for failure to state a prima facie case. This Application appears to be based upon similar allegations.

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 16, 2010.

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 Plan who are re-employed in education. At the time of this application, (as was the case in Clarke v. Ontario Teachers’ Pension Plan Board, 2010 HRTO 1123 (“Clarke”)) the pensioner re-employment provisions of the Plan stipulated that a retired teacher was only permitted to work as an occasional teacher for 95 days in each of first three years after his or her retirement; and 20 days every subsequent year thereafter 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) face restrictions limiting the number of days that they could work that 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 as follows at paragraphs 21and 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”).

9The underlying facts in the Clarke decision mirror the facts applicable to the applicant in the case at hand. Both applications involved teachers who voluntarily took advantage of the early retirement provisions of the Plan and who had subsequently sought to work beyond the limitations of the pensioner re-employment provisions. The applicant, in the written and oral submissions submitted on his behalf, failed to identify any material basis to distinguish the facts associated with his Application and those in Clarke.

10The applicant did place particular emphasis on an April 2009 letter he received from the then President of the respondent Ontario Teachers’ Federation. In that correspondence it was suggested that “a pension is part benefit, part social engineering, the purposes of which is to allow an individual to cease working with dignity and to allow for the renewal of the workforce”. From the applicant’s perspective, that statement was evidence of preference being given to the needs of younger teachers entering the workforce at the expense of older teachers seeking to continue to work; and as such constituted discriminatory treatment on account of age.

11The statement relied upon by the applicant was made in the context of outlining the purposes of pension plans generally, and not in relation to the pensioner re-employment provisions. That is, it was being suggested that an underlying purpose of a pension plan was to encourage older workers to retire; thereby allowing new workers to enter the workforce. If the advancement of that purpose is inherently discriminatory as inferred by the applicant, then arguably the Plan as a whole would be susceptible to attack as being discriminatory. The applicant, however, did not assert that the Plan, as a whole, infringed the Code.

12As the Tribunal noted in Clarke and in Kovacs v. Arcelor Mittal Montreal, 2010 HRTO 303, pursuant to s. 25(2.1) of the Code, differentiation on account of age under a pension plan is permissible provided that the plan complies with the provisions of the Employment Standards Act, 2000 and its regulations.

13Finally, the applicant failed to offer any rationale for the Tribunal to deviate from the reasoning in Clarke where it was decided that any differential treatment associated with the pensioner re-employment provisions was connected to employment status, and not age.

14Accordingly, there is no reasonable prospect the Application would succeed and it is dismissed.

Dated at Toronto this 13^th day of January, 2011

”signed by”______________

Brian Sheehan

Member