Raymond Bacon v. Insulators Local 95 Pension Plan, 2012 HRTO 1249

Human Rights Tribunal of Ontario

B E T W E E N:

Raymond Bacon

Applicant

-and-

Insulators Local 95 Pension Plan

Respondent

DECISION

Adjudicator: Brian Cook Decision Date: June 26, 2012 Citation: 2012 HRTO 1249 Indexed as: Bacon v. Insulators Local 95 Pension Plan

APPEARANCES

Raymond Bacon, Applicant Self-represented

Insulators Local 95 Pension Plan, Respondent Ron Lebi, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in services on the grounds of age in the operation of a pension plan. The Application was filed on October 20, 2011.

2The Application named the Benefit Plan Administrators Limited as respondent. The Response indicates that the correct name of the respondent is the Insulators Local 95 Pension Plan and the style of cause is amended to reflect this.

3After reviewing the Application, the Tribunal issued a Notice of Intent to Dismiss because it appeared that the Application had not been filed within one year of the last incident of alleged discrimination, as required by section 34 of the Code.

4The applicant filed submissions on the Notice of Intent to Dismiss. These were reviewed in a Case Assessment Direction dated January 4, 2012, which concluded that it was not plain and obvious that the Application had not been filed within one year of the last incident of alleged discrimination. However, the Tribunal directed that a telephone conference call hearing be held to clarify the nature of the alleged discrimination and to address the question of whether the Application was filed in accordance with section 34 of the Code. The respondent was not required to file a full Response; but was directed to provide an explanation of its understanding of the circumstances of the applicant as they relate to his entitlement to pension benefits. The respondent provided this explanation in a letter sent in advance of the hearing and participated in the conference call. The telephone conference call hearing took place on May 14, 2012.

Background

5The Insulators Local 95 Pension Plan (the "respondent" or "the Plan") is a multi-employer pension plan. The applicant was a member of the Plan from 1972 to 1997. He then withdrew from the Plan and withdrew his contributions. He re-joined the Plan in 2004. At the time of this hearing the applicant was 60 years old.

6The applicant was off work on a short-term disability leave for a period in 2005 and again in 2006. During the 2005 short-term disability leave he received some pension credit but he did not receive any pension credit for the short-term disability leave in 2006. He alleges that the reason for this difference was his age contrary to the Code.

7The applicant anticipates that he may require short-term disability leave again in the future. He believes he will not get any pension contributions while on such a leave but that a younger person would.

Analysis

8As with many pension plans, the Plan features a "normal retirement date" which is the date the member turns 65, and a "early retirement date". Currently the early retirement date is when the member turns 60. Before October 1, 2009, when the Plan was amended, the early retirement date was 55. Under certain circumstances, a member who reaches his early retirement date may qualify for an unreduced pension.

9To be eligible for an unreduced pension at the early retirement date, the member must have enough credited hours of work and pension contributions. If the applicant had continued in the plan in 1997 instead of withdrawing from the Plan, he would have been eligible for an unreduced pension by now because he is 60 years old and would have enough credited pension contributions to qualify. However, since he withdrew from the Plan in 1997 and re-joined only in 2004, he does not have enough credited hours to qualify for an unreduced pension at this time. He will be entitled to an unreduced pension when he turns 65, which will be based on the value of the credits he has accrued to that time.

10The dollar value of a member's monthly pension varies depending on the amount of credited pension contributions, regardless of whether the member retires as of the early retirement date or the regular contribution date. The pension will be higher if there are more credited contributions.

11There is provision in the Plan for continuing contributions to members who become totally and permanently disabled in certain circumstances. Since October 1, 2009, when the Plan was amended, a member who becomes totally and permanently disabled and who is under 60 years of age is eligible for a pension contribution equivalent to 125 hours per month. To be eligible, the member must be entitled to benefits for permanent total disability from a workers' compensation Board, the Canada Pension Plan, the Employment Insurance Commission, or the long-term disability plan administered by the union. Under the Plan, a member is not entitled to the 125 hour pension contribution after the age of 60 because at that date, the member becomes eligible for the unreduced pension, provided the member has sufficient credits.

12Prior to October 1, 2009, the contribution of the 125 hours of pension contribution for permanently totally disabled members ended at age 55 instead of the current age 60.

13The applicant has never been and has never declared himself totally and permanently disabled and so would not benefit from these provisions.

14From his December 31, 2005 Pension Plan Statement it appears that the applicant received 125 "disability credits" in June 2005 while off work on short-term disability leave between March and August 2005. The credits were only in respect of the month of June and not for any of the other months the applicant was off work on the short term disability leave in 2005.

15The respondent suggests that this credit may have been made in error. There does not appear to be any other explanation for why the applicant received the 125 "disability credits" in June 2005.

16The applicant believes that he should have received a pension credit for the period of short-term disability in 2006 in the same way that he did in 2005. He believes that the reason he did not is that in 2006 he was over 55 whereas in 2005 he was under 55. He alleges that this means that he was treated in a discriminatory way because of his age.

17The respondent asserts that the applicant would not have been entitled to any pension credit in 2006 while he was off work on short-term disability leave because there was no basis for any pension credit when a member was off work on a short-term disability, regardless the member's age.

18A member who is permanently totally disabled may be eligible in certain circumstance for a pension credit The Plan rules about this have changed and one of the changes has been in respect of the member's age as it relates to the date the member is eligible for early retirement. However, the applicant was not permanently and totally disabled so these changes are not relevant to his situation and specifically not relevant to the reason he did not receive the pension credit when he was on short-term disability leave in 2006.

Conclusions

19If there were evidence of discrimination on the basis of age, it is now apparent that the applicant's allegation relates to the situation in 2006 and also to a potential future situation. The situation in 2006 was that he was not awarded credit for a period of short-term disability. The potential future situation relates to the fact that, under the current terms of the Plan, he will also not be entitled to pension credit for any period of short-term disability that may arise in the future.

20Since the Application was filed in October 2011, it is clear that it was not filed within one year of 2006, when the applicant was not granted pension credit for the period of short-term disability in 2006.

21The applicant suggests that the situation in 2006 continues to adversely affect him even to the present because his future pension entitlement will always be reduced from what it would have been if he had been awarded the pension credit in 2006. In my view, these circumstances do not constitute a continuation of an alleged discriminatory event that started in 2006. In the circumstances of this case, even if the fact that the applicant did not receive pension credit for the period of short-term disability in 2006 was discriminatory, the discrimination occurred in 2006. In my view, in the circumstances of this case, the fact that the applicant's pension may ultimately be less because he was not granted a pension credit in 2006 does not constitute a continuing act of alleged discrimination such that the Application was filed within one year of the alleged discrimination or within one year of the last in a series of alleged discriminatory incidents.

22I therefore conclude that the Tribunal does not have jurisdiction to deal with the applicant's allegations about the failure to obtain pension credit for the period of short-term disability in 2006.

23With respect to the applicant's concern about what may happen if he goes on short-term disability in the future, the Code does not allow a person to file an Application in respect of alleged discrimination that has not yet occurred. Under section 34 of the Code, a person may file an Application if the person "believes that any of his or her rights under Part 1 have been infringed." The Application must therefore relate to events that have occurred and that have resulted in an alleged infringement of the person's Code-protected rights. The Tribunal does not have jurisdiction to consider the applicant's concern about what may happen in the future.

24For these reasons, the Application is dismissed.