Repaye v. Flex-N-Gate Canada, 2012 HRTO 1258

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Repaye

Applicant

-and-

Flex-N-Gate Canada

Respondent

-and-

Canadian Auto Workers Local 195

Intervenor

DECISION

Adjudicator: Brian Cook

Date: June 26, 2012

Citation: 2012 HRTO 1258

Indexed as: Repaye v. Flex-N-Gate Canada

APPEARANCES

James Repaye, Applicant Cynthia Thrasher, Counsel

Flex-N-Gate, Respondent H.P. Rolph, Counsel

Canadian Auto Workers Local 195, Intervenor Aaron Neaves, Representative

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 employment because of age. At the time the Application was filed the applicant was 65 years of age. The respondent provides short-term and long-term benefits to its employees, pursuant to a Collective Agreement. The benefit package provides that short-term and long-term disability benefits are not payable to an employee who is 65 or older. The applicant’s application for short-term disability benefits was not approved on this basis. The applicant alleges that this is discriminatory and contrary to the Code. The respondent submits that differential treatment in respect of persons who are 65 and over in respect of a benefit plan is exempt under the Code.

2Pursuant to a Case Assessment Direction dated August 11, 2011, and on its own initiative, the Tribunal directed that a summary hearing be held. The summary hearing process is authorized by the Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing, the issue is whether the Application should be dismissed because there is no reasonable prospect of success. The summary hearing was held on March 1, 2012.

3During the summary hearing, Mr. Rolph, the respondent’s counsel referred to a decision of an Arbitrator which he submitted was directly on point. He asked that he be allowed to forward the decision to me and the applicant’s counsel Ms. Thrasher. I consented and permitted Ms. Thrasher to make written submissions on the decision. Final submissions were received on April 5, 2012.

Background

4The applicant turned 65 on August 20, 2010. On August 18, 2010, he suffered a non-work-related injury and was off work from August 19 to September 20, 2010.

5Under the Collective Agreement, employees are entitled to weekly indemnity benefits for short-term disability. The benefits are provided pursuant to a short-term disability policy with an insurer. The short-term disability benefits are payable for a maximum of 14 days, representing the two-week waiting period under the employment insurance plan. The policy states that short-term disability benefits end when an employee turns 65.

6Initially, the insurer paid short-term disability benefits to the applicant only for August 19 and 20, 2010 on the grounds that the applicant turned 65 on August 20. The applicant filed a grievance. The insurer reviewed the applicant’s claim and determined that he was entitled to benefits for the full 14 day period under the short-term disability plan because the injury giving rise to his entitlement for benefits occurred before he turned 65. The applicant was entitled to employment insurance benefits for the additional 8 days of lost time from work before he returned to work on September 20, 2010. As a result of the review by the insurer, the grievance was withdrawn.

7In June 2011, the applicant again went off work due to a non-work-related condition. His application for short-term disability was denied because he was over 65 years of age. He received employment insurance benefits but remained off work for approximately 3 months before he returned to work. His application for long term disability benefits was also denied because he was over 65 years of age.

The applicable legislation

8Section 5 of the Code prohibits discrimination in employment on the basis of age and other grounds:

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.

9Section 25 of the Code reads in part as follows:

25. (1) The right under section 5 to equal treatment with respect to employment is infringed where employment is denied or made conditional because a term or condition of employment requires enrolment in an employee benefit, pension or superannuation plan or fund or a contract of group insurance between an insurer and an employer, that makes a distinction, preference or exclusion on a prohibited ground of discrimination.

(2.1) The right under section 5 to equal treatment with respect to employment without discrimination because of age is not infringed by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act, 2000 and the regulations thereunder.

(2.2) Subsection (2.1) applies whether or not a plan or fund is the subject of a contract of insurance between an insurer and an employer.

(2.3) For greater certainty, subsections (2) and (2.1) apply whether or not “age”, “sex” or “marital status” in the Employment Standards Act, 2000 or the regulations under it have the same meaning as those terms have in this Act.

10In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 – 10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

11Pursuant to section 25(2.1), an employee benefit plan like the one applicable in this case may provide for differential treatment based on age provided that it complies with the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”).

12Part XIII of the ESA deals with Benefit Plans and section 44(1) of the ESA provides as follows:

44(1) Except as prescribed, no employer or person acting directly on behalf of an employer shall provide, offer or arrange for a benefit plan that treats any of the following persons differently because of the age, sex or marital status of employees:

1. Employees.

2. Beneficiaries.

3. Survivors.

4. Dependants.

13Regulation 286/01 to the ESA concerns Benefit Plans. Section 1 of the Regulation includes the following definitions:

For the purposes of Part XIII of the Act and this Regulation,

“age” means any age of 18 years or more and less than 65 years;

“disability benefit plan” means a benefit plan that provides benefits to an employee for loss of income because of sickness, accident or disability;

14Section 44 of the ESA, is in Part XIII. Pursuant to the Regulation, “age” for the purpose of section 44 means any age between 18 and 64. This means that section 44, which otherwise prohibits differential treatment on the basis of age in respect of a disability benefit plan under the ESA, only prohibits differential treatment on the basis of age for people between the age of 18 and 64. It does not prohibit differential treatment for persons under 18 or over 64.

15This means that a short or long term disability plan that ceases to cover an employee who becomes 65 years of age or older complies with the ESA and by virtue of s. 25(2.1) of the Code also complies with the Code.

16Of course, an employer may choose to extend disability benefits to employees who are 65 and over. However, a failure to do so cannot be challenged based on the provisions of the Code.

17At the summary hearing, Mr. Rolph referred to a decision of Arbitrator Brian Etherington, Chatham-Kent (Municipality) and O.N.A., 104 C.L.A.S. 267. That decision arose from a grievance filed by the Ontario Nurses Association in respect of provisions in a Collective Agreement which meant that employees older than 64 were not entitled to various benefits, including short-term and long term disability benefits.

18After reviewing the legislative provisions that I too have reviewed, the Arbitrator concluded, at paragraph 88:

In effect, employers are not prohibited from providing lesser benefits to employees once they reach 65, and workplace benefit plans that discriminate against these workers cannot be challenged under the Human Rights Code.

19The Arbitrator went on to deal with the argument that the provisions of the Code and the ESA that permit differential treatment because of age in respect of employment benefit plans are unconstitutional as they are contrary to section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”), which is not an issue in the present case. The Arbitrator concluded that the impugned provisions of the Code and the ESA are discriminatory under section 15 of the Charter. However, he also found that the impugned provisions are demonstrably justifiable as reasonable limits under section 1 of the Charter.

20On behalf of the applicant, Ms. Thrasher submits that the present case can be distinguished on the facts from the Arbitrator’s decision in Chatham-Kent because in that case, the age differentiation that affected the grievor’s entitlement to benefits after she turned 65 was “a freely bargained for benefit of the Collective Agreement”. In her submission, in the instant case, the Collective Agreement is silent on whether an employee is entitled to short-term disability benefits beyond age 65 and the employer has unilaterally negotiated short-term disability coverage that ends at 65.

21In my view, even if Ms. Thrasher is correct that the circumstances here are different, this would not change the analysis in this case. None of the relevant provisions in the Code and the ESA distinguish between employment where the workers are unionized from those where they are not. In either case, it is clear that workplace short-term and long term disability plans that differentiate because a person is over 65 cannot be challenged under the Code.

22An allegation that the employer has violated the terms of the Collective Agreement by securing an insurance contract that provides benefits only to age 65 when there was an agreement between the union and the employer to provide benefits beyond 65 is a matter that can be dealt with using the procedures established by the Collective Agreement.

23For these reasons, there is no reasonable prospect that the Application could succeed and it is dismissed on that basis.