HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Judith Law
Applicant
-and-
Thames Valley District School Board
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Law v. Thames Valley District School Board
APPEARANCES
Judith Law, Applicant ) Self-represented
Thames Valley District School Board, ) Peter Thorup, Counsel
Respondent )
[1] This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).
[2] Prior to her retirement, the respondent Thames Valley District School Board (“the Board”) employed the applicant as a primary school teacher. After she retired, she applied to be on the Board’s occasional teacher list. Her application was denied.
[3] Shortly before she applied, the Board decided that retired teachers would be added to the primary school occasional teacher list only if they were certified in one or more of French, Special Education, Music or Technology. The applicant was not certified in any of the required areas. There is no dispute that she would have been added to the occasional teacher list if she had been certified in one of the areas.
[4] The applicant discovered that new graduates from Teachers College could be added to the occasional teacher list without having certification in one of the areas required for retired teachers.
[5] The applicant alleges discrimination on the ground of age because retired teachers, who are necessarily older, are treated differently than new graduates who are, relative to retired teachers, generally young.
[6] I heard evidence from the applicant, Mike Sereda, who is the Board’s Superintendent of Human Resources, and Sandi Douglas, a Board Staffing Officer.
[7] After the hearing, the Ontario Court of Appeal released its decision in Tranchemontagne v. Ontario (Director, Disability Support Program), [2004 CanLII 41165 (ON C.A.)](https://www.minicounsel.ca/oca/2004/41165). As this decision seemed relevant to the issues argued at the hearing, I invited post-hearing submissions on it from the parties, which were received in January 2011.
The Occasional Teaching List
[8] The occasional teaching list is populated primarily from two streams. One stream consists of retired teachers, and the other consists of new graduates from a Teachers College.
[9] Other people who may apply to be on the list are experienced teachers who transfer to the Board from another Board, and teachers who are permanent part-time teachers who wish to supplement their permanent part-time work with work as occasional teachers.
[10] Since 2000, teachers in Ontario have been able to retire when their age plus years of teaching equals 85 (“Factor 85”). Retirement at Factor 85 is not mandatory. A teacher can continue to teach beyond Factor 85 and the teacher’s pension is enriched if he or she does continue to teach. However, the large majority of teachers do retire at Factor 85. The pension plan includes rules regarding how many days a retired teacher who is on the occasional list can teach without affecting their pension payment, and those rules change from time to time.
[11] Information packages provided to prospective retirees by the Board emphasize that a retiree should not count on becoming an occasional teacher and teachers will be added to the list based on the Board’s needs. For primary schools, the areas of greatest need are French, Special Education and Music. Technology is only a relevant factor for the secondary school occasional list. Geographical need may also be a factor because the Board operates in a large geographical area and it can be difficult to find occasional teachers in small communities.
[12] Retired teachers who want to be on the list for a school year must send an application to the Board by August. The Board then sends the application to the principal of the school where the teacher was working prior to retirement. The principal must certify that the teacher is suitable for the job of occasional teacher.
[13] Historically, roughly 40% of retired teachers applied to be on the occasional list. The respondent’s witnesses agreed with the applicant that, for several years prior to 2008, the year the applicant applied and the year that the new policy was implemented, retired teachers who wanted to be on the list generally made it on to the list, provided the principal certified they were suitable for the job.
[14] The majority of teachers who are on the occasional teacher list are new graduates from Teachers Colleges. The Board hires new permanent teachers primarily from the occasional list. In this way, prospective permanent teachers gain work experience with the Board and the Board has an opportunity to evaluate their work to ensure that people taken on as permanent teachers are of a high quality.
[15] Each year, the Board receives thousands of applications from graduates from Teachers Colleges. Western University in London, the largest community in the area covered by the Board, produces about 700 graduates every year and many of those graduates live in the area and would prefer to teach in London or a nearby community. The Board also receives large numbers of applications from graduates of other Teachers Colleges. In addition, there are a smaller number of qualified teachers who have relocated to the Thames Valley area and hope to get a permanent job as a teacher. To do this, they too must first get onto the occasional teachers list.
[16] For the past several years, the student population in the Board’s catchment area has been declining. The Board has had to close schools and the need for teachers has declined. Of the thousands of applications from new graduates and relocated teachers, only a few hundred are selected for an interview and less than one hundred get onto the occasional teacher list.
[17] Teachers who do get on the occasional list are covered under a collective agreement. A few years ago, the agreement was changed to include a cap on the total number of people on the list of approximately 1,500. The purpose of the cap is to ensure that people on the list have access to occasional teaching jobs.
[18] There are two types of occasional teaching jobs. The majority result from permanent teachers who miss an occasional day from teaching because of illness, training, etc. The second type of occasional teaching job results from long-term absence of a permanent teacher, for example due to extended illness or parental leave.
[19] It sometimes happens that an assignment that seems like it will be a short-term assignment turns out to be a long-term assignment. This can be a problem if the person assigned from the occasional list is a retired teacher as there are limits on the number of days they can teach in a year without affecting their pension. It is preferable that only one occasional teacher cover a long-term absence of a permanent teacher.
[20] Under the collective agreement, everyone on the occasional teacher list is paid the same for short-term assignments. Retired teachers receive a higher rate, comparable to their pay at the time of retirement, for long-term assignments. Long-term assignments covered by a retired teacher are thus more expensive for the Board.
[21] In this case, the applicant applied to be on the occasional teacher list in 2008 and was rejected at that time solely because she did not have certification in French, Music or Special Education.
[22] Later, in the fall of 2009, the Board contacted the applicant and asked if she would like to be on the occasional teacher list. By that time, the applicant had made other arrangements and declined the offer. She testified that she did not apply to be on the list for the 2010-2011 school year because she wanted to find out the outcome of the Application before this Tribunal.
[23] The applicant testified that she has not looked for any alternative employment because she is only interested in teaching and only interested in teaching in the London area.
The Legal Test
[24] Section 5(1) of the Code provides as follows:
5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
[25] Subsections 11(1) and (2) provide as follows:
- (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
[26] A finding of discrimination does not automatically flow from a finding that one group has been treated differently than another group. In Law v. Canada (Minister of Employment and Immigration), [1999 CanLII 675 (SCC)](https://www.minicounsel.ca/scc/1999/675), [1999] 1 SCR 497, for example, the Supreme Court of Canada considered a provision of the Canada Pension Plan that treated younger widowed women differently than older widowed women. Older women received higher pensions than younger women, based on a sliding scale. The appellant who was 30 years of age received no pension. The Court found that while there was a clear distinction based on age, the distinction was not discriminatory under the Canadian Charter of Rights and Freedoms.
[27] The Supreme Court recently dealt with a similar case in Withler v. Canada (Attorney General), [2011 SCC 12](https://www.minicounsel.ca/scc/2011/12) where it again found that distinctions in a pension plan based on age were not discriminatory within the meaning of section 15 of the Charter.
[28] Law and Withler were brought under section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”) which provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[29] The principle that not all distinctions are discriminatory in the context of human rights codes was explained in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007 SCC 4](https://www.minicounsel.ca/scc/2007/4), [2007] 1 S.C.R. 161 (“McGill University Health Centre”). At paras. 45-50, Abella J. held that, under Quebec’s human rights statute,
(…) a workplace practice, standard, or requirement cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics. The goal of preventing discriminatory barriers is inclusion. It is achieved by preventing the exclusion of individuals from opportunities and amenities that are based not on their actual abilities, but on attributed ones. The essence of discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed, whether intentionally or unwittingly.
What flows from this is that there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.
[30] In Law, the Supreme Court discussed the factors to be considered when determining whether a law is discriminatory within the meaning of section 15 of the Charter. Those factors were refined by the Supreme Court in R. v. Kapp, [2008 SCC 41](https://www.minicounsel.ca/scc/2008/41), [2008] 2 S.C.R. 483. In Kapp, the Supreme Court reviewed the evolution of the Court’s understanding of discrimination under section 15 of the Charter of Rights an Freedoms and articulated a two-part test:
(1) Does the law create a distinction based on an enumerated or analogous ground?
(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
[31] In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA, the Ontario Court of Appeal considered whether provisions in the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B, were contrary to the Code. The Court said that the test in Kapp is generally applicable to cases under the Code and stated, at paragraph 74:
[T]he test for establishing discrimination under the Code is consistently expressed in the jurisprudence as requiring a distinction based on a prohibited ground that creates a disadvantage.
[32] The Court referred to two early decisions of the Supreme Court in respect of the evidence that is necessary to show that a distinction has created a disadvantage (at paragraphs 75 – 76):
In the Supreme Court of Canada’s seminal decision in O'Malley, McIntyre J. described discrimination (in that case adverse effect discrimination) as follows, at p. 551:
It arises where an employer ... adopts a rule or standard ... which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. [Emphasis added by the Court of Appeal.]
In Andrews at p. 174, McIntyre J. expanded on the concept of disadvantage, albeit in the Charter context, and described it as a distinction based on one or more personal characteristics which has the effect of “imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.”
[33] In respect of the second part of the Kapp test, which requires evidence of prejudice or stereotyping, the Court noted (at paragraphs 90–91):
In the human rights context, in most instances, it will be evident that a prima facie case of discrimination has been established based solely on the claimant’s evidence showing a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others). An inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone.
However, in other instances a more nuanced inquiry may be necessary to properly assess whether a distinction based on an enumerated ground that creates a disadvantage actually engages the right to equal treatment under the Code in a substantive sense.
[34] A traditional analysis of a human rights Application may involve first a determination of whether the applicant has established a prima facie case based on the evidence called by the applicant. Only if a prima facie case is established is the respondent called on to give evidence to establish a statutory defence or exemption. In cases decided by the Tribunal, it is typical, as occurred in this case, for the Tribunal to decide the Application on the basis of evidence from the applicant and the respondent and to consider the totality of the evidence (see Hendershott v. Ontario (Community and Social Services), [2011 HRTO 482](https://www.minicounsel.ca/hrto/2011/482)).
Analysis
[35] The legal tests discussed above suggest that there are two threshold questions in this case. The first is whether the applicant has established evidence of a distinction based on a prohibited ground that creates a disadvantage. The second is whether the distinction is discriminatory.
[36] There is no dispute that the policy created a distinction. Retired teachers are required to have certification in French, Music or Special Education. New graduates are not.
[37] Retired teachers like the applicant who did not have the necessary certification could not get on the list. The policy therefore imposed a requirement on the group of retired teachers not imposed on other teachers, which limited their access to the occasional teacher list. The distinction therefore resulted in disadvantage to the applicant and other retired teachers who did not have the required certification.
[38] The question then becomes whether the distinction is based on a prohibited ground. Under section 11 of the Code, the question is whether the group of retired teachers is a group of persons who are identified by a prohibited ground of discrimination, specifically age.
[39] The applicant argues that the distinction is based on age. The distinction applies only to retired teachers in receipt of pensions. As a group, retired teachers can be identified by age. They are necessarily older individuals because of the Factor 85 process, that requires a teacher to have a combination of age and years of work that combine to equal 85 before the teacher can retire and receive an unreduced pension. Those teachers that have retired at Factor 85 will thus almost certainly be at least in their mid to late 50’s.
[40] However, the group of retired teachers can also be identified by their employment status. If the distinction in this case is based only on the fact that the group of retired teachers are retired and in receipt of a pension, and not because of age, the distinction is not based on a prohibited ground and is not covered by the Code.
[41] In my view, the evidence as a whole indicates that the distinction in this case was based on the retired status of the group of retired teachers and not based on age. The reasons for this follow.
The policy does not exclude other groups of older teachers
[42] An important factor that suggests that the distinction is based on employment status and not on age is that the policy does not prevent other groups of older teachers from being placed on the occasional teacher list. Some teachers only work as occasional teachers. These teachers may be of any age and an older teacher who has worked only as an occasional teacher can be on the list. Similarly, according to the uncontested evidence of the respondent, a part-time permanent teacher may also wish to be on the occasional list to supplement that teacher’s part-time permanent work. These teachers can be of any age and the policy does not affect them unless they retire.
[43] A teacher who transfers to the Board from another jurisdiction may also be of any age. Those teachers too can apply to be on the occasional list without restriction.
[44] People can retire from other occupations and receive a pension and then apply to Teachers College. After graduating, such a person is not affected by the policy because, although the person is receiving a pension, and is an older person, the person is nevertheless eligible for a permanent teaching position.
[45] Seen in this light, the policy does not create a distinction between younger and older teachers. It rather creates a distinction between those teachers who are eligible to be hired for permanent positions and those teachers who are not eligible for permanent positions. A retired teacher who is in receipt of a teacher’s pension is not eligible to be hired for a permanent position not because the retired teacher is an older teacher but because she is retired and in receipt of a teacher’s pension.
Retired teachers can get on the list
[46] The policy does not preclude retired teachers from being on the list. Pursuant to the policy, the applicant can get on the list by getting certification in one of the specified subject areas. This involves taking a course, usually in the summer. According to the uncontested evidence of the respondent, such courses are available to retired teachers.
New graduates are more likely to get on the list with the qualifications
[47] While it is true that new graduates are not required to have the specified certifications, the uncontested evidence from the respondent is that new graduates are much more likely to get on the list if they do have one of the specified certifications. The respondent’s explanation for why it does not impose the requirement on new graduates is that it does not want to exclude a new graduate who could potentially become a stellar permanent teacher.
[48] It is true that the effect of the policy is to exclude retired teachers who are stellar teachers and who do not have the certification. However, the difference is that retired teachers are never going to be candidates for permanent teaching positions, precisely because they are retired.
The applicant was not required to retire
[49] Neither the employment contract nor the pension rules required the applicant to retire when she did. A teacher is not required to retire at Factor 85. Factor 85 only represents the point at which a teacher can retire with an unreduced pension. A teacher can continue to work as a teacher and continue to contribute to the pension plan beyond her Factor 85 date. If she does, the value of her pension continues to increase, although this may have a ceiling.
[50] According to the evidence of the respondent, a full-time permanent teacher who wanted to work on a part-time basis can become a permanent part-time teacher and not retire. The policy would not affect a person in that position.
Conclusions
[51] In my view, the respondent’s policy restricted the applicant from placement on the occasional teacher list because she is retired and not because of her age. The evidence as a whole, including the factors discussed above, indicates that the policy limits a retired teacher’s access to the list based on employment (or retirement) status and not on age.
[52] Under section 5 of the Code, every person has the right to equal treatment in employment without discrimination because of specific grounds, including age. If a group or individual is treated differently because of some ground other than those specified in section 5, the different treatment does not result in an infringement of the Code-protected rights of the group or the individual.
[53] Under section 11 of the Code, different treatment of a group or individual may result in an infringement of the Code-protected rights of the group or individual if the group or individual is “identified by a prohibited ground of discrimination”. In this case, as discussed earlier, retired teachers in receipt of a pension can be identified by age because in order to retire and qualify for a pension, they are necessarily older teachers. However, in my view, in order to find that the policy has an adverse impact on this group, the evidence must show that the distinction arises, at least in part, because of a prohibited ground of discrimination.
[54] In my view, the evidence in this case establishes that the distinction created by the policy that prevented the applicant from being placed on the occasional teacher list was based on the fact that she was retired and in receipt of a pension, and not because of her age.
[55] For these reasons, the Application is dismissed.
Dated at Toronto, this 18^th^ day of May, 2011.
“Signed By”
Brian Cook
Vice-chair```