Gill v. Hamilton Professional Fire Fighters’ Association, 2012 HRTO 1506

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eian Gill

Applicant

-and-

Hamilton Professional Fire Fighters’ Association,

International Association of Fire Fighters Local 288

Respondent

A N D B E T W E E N:

Eian Gill

Applicant

-and-

City of Hamilton

Respondent

DECISION

Adjudicator: David A. Wright

Date: August 1, 2012

Citation: 2012 HRTO 1506

Indexed as: Gill v. Hamilton Professional Fire Fighters’ Association

APPEARANCES

Eian Gill, Applicant

Wade R. Poziomka and Raymond D. Hall, Counsel

Hamilton Professional Fire Fighters’ Association, International Association of Fire Fighters Local 288, Respondent

Howard Goldblatt and Mandy Wojcik, Counsel

City of Hamilton, Respondent

Lauri A. Reesor, Counsel

Introduction

1The applicant was required to retire from his position as a suppression firefighter when he turned 60 on February 12, 2010, pursuant to the collective agreement between the Hamilton Professional Fire Fighters’ Association (the “Association”) and the City of Hamilton (the “City”). He alleges that as a result of the mandatory retirement provision in the collective agreement, the respondents have discriminated against him on the basis of age contrary to s. 5 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Decision follows a summary hearing ordered pursuant to Rule 19A of the Tribunal’s Rules. The respondents assert that these Applications have no reasonable prospect of success. They rely upon the Tribunal’s decision in December 2008 in Espey v. London (City), 2008 HRTO 412, which found that mandatory retirement at age 60 for suppression firefighters was justified as a bona fide occupational requirement (“BFOR”) and did not violate the Code. Espey related to a complaint referred to the Tribunal by the Ontario Human Rights Commission under the Code as it stood prior to June 30, 2008, in which the complainant’s position was supported by the Ontario Human Rights Commission. The Espey decision was made following a nine-day hearing, during which both the Commission and the respondent Association called expert evidence. The respondents say that they should be entitled to rely upon the conclusions in Espey.

3In contrast, the applicant emphasizes that the legal onus to establish a BFOR lies on the respondent. He asserts that it cannot be said that there is no reasonable prospect of success when the respondents have not put forward evidence that shows that the test in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), has been met in these particular circumstances. He emphasizes that there is no doctrine of binding precedent in administrative proceedings. Finally, he puts forward recent scientific studies that he says suggest that the conclusions in Espey are outdated.

4At the centre of the applicant’s argument is the proposition that the Tribunal cannot find that there is no reasonable prospect of success when an onus lies on the respondent, or base such a finding on conclusions in a decided case. I do not agree. In my view, in these circumstances, as explained further below, there must be a reasonable substantive basis, beyond speculation, to suggest that the defence would not succeed and that the result would be different in this case. Having been given the opportunity to put forward such evidence, the applicant has shown none.

BACKGROUND

5The facts regarding the applicant’s retirement are straightforward. Article 3.4 of the Collective Agreement between the City and the Association requires the applicant to retire at the age of 60. Several months before the date of his retirement, the applicant took the position that the clause was illegal and that the Espey decision was in error. The applicant was offered accommodation by the respondent in a position as a communications operator. The applicant declined this offer.

6In early 2011, the applicant filed these Applications against the City and the Association alleging that the mandatory retirement provision violated the Code. His Applications highlight, among other things, what he sees as the errors in Espey and the fact that the collective agreement between the City of Hamilton and the Greater Hamilton Volunteer Firefighters Association affiliated with the Christian Labour Association of Canada, the bargaining agent for volunteer firefighters, does not require mandatory retirement at age 60, but only a yearly medical examination.

7On June 1, 2011, the Fire Protection and Prevention Act, 2011, S.O. 2011, c. 13, received royal assent. This legislation, among other things, amends the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, to expressly permit mandatory retirement at age 60 from fire suppression duties in existing or new firefighter collective agreements. As of June 1, 2013, every firefighter collective agreement that does not include a mandatory retirement provision for suppression firefighters or that includes a provision requiring retirement at an age under 60 is deemed to include a provision requiring retirement at age 60. The legislation provides that it applies despite the Code, and that a firefighter is not required to retire at age 60 if the firefighter can be accommodated without undue hardship. While it is not directly applicable to this case because of the timing of the applicant’s retirement, the applicant seeks to challenge this legislation pursuant to the Canadian Charter of Rights and Freedoms to the extent that it may prevent him from obtaining the remedy of reinstatement. In a Case Assessment Direction, I found that this issue would be addressed after the summary hearing, if necessary, as it relates only to the issue of remedy.

8Together with its response to the Application against it, the Association filed a Request for Summary Hearing, highlighting the decision in Espey as well as its view that there was no basis for the Association to be liable under the case law. In a Case Assessment Direction (“CAD”) dated July 11, 2011, the Tribunal granted the Association’s Request for Summary Hearing and ordered, on its own initiative, that a summary hearing be held in the Application against the City, both to be heard together. The CAD stated that the issue was whether there was a reasonable prospect that either Application could succeed in light of the decision in Espey.

APPLICANT’S SUBMISSIONS

9The summary hearing was originally held on December 7, 2011, by teleconference. The applicant’s counsel made written submissions in advance of the summary hearing and, during the teleconference, as a result of questions I asked, sought leave to make more submissions and file more evidence. Over the objections of the respondents, I granted the applicant leave to file additional statistics and medical evidence to support their submission that this case is different from Espey. Counsel did so, and a further teleconference hearing was held on February 7, 2012, to hear submissions from all parties.

The Applicant’s First Submissions

10The applicant notes that the onus is on the respondents to establish that age is a BFOR. He argues that in these circumstances, the Tribunal must conclude that each of the three Meiorin criteria is certain to succeed or the Application must proceed. He takes issue with the Association’s suggestion that Espey is “binding precedent” in Ontario, noting that administrative tribunal decisions are not binding precedent: Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585, at para. 31. He argues that considerations such as judicial economy and avoidance of relitigating similar issues cannot allow the Tribunal to abdicate its duty to evaluate each application according to its own merit on the facts of the specific case before it, nor can they be invoked on a summary hearing.

11The applicant emphasizes that he has “neither conceded nor waived any of the requirements of the Meiorin test”, which he suggests was the case in Espey. In relation to the first stage of the test, that the employer adopted the standard for a purpose rationally connected to the performance of the job, the applicant argues that in the absence of any cardiac risk assessment testing or other physical performance testing, this criterion cannot be met. He states that “there is a likely probability that the City… simply chose to avoid expending the resources required to meet the due diligence required to assess the risk of cardiac events”. The applicant suggests that the purpose of the provision cannot be rationally connected to the performance of the job because it was not adopted for volunteer firefighters. Similarly, he states that it cannot have been adopted in an honest and good faith belief that it was necessary to a legitimate work-related purpose, given that it is not applied to volunteer firefighters. Finally, he argues that in the absence of individualized assessment the third stage of the Meiorin test cannot be met.

Supplementary Submissions

12The applicant argues that the research and medical evidence presented in Espey is dated and no longer applicable. He has filed articles that he suggests support these propositions. Some are from peer-reviewed journals, some are not. The applicant asserts that he has consulted with several medical practitioners, and anticipates being able to produce a medical report and expert testimony that will differ substantially from that heard in Espey. He provided nothing in support of this last assertion, however, despite being given an opportunity to do so, even after the summary hearing.

ANALYSIS

The Espey Decision

13Espey was not the first decision to deal with the issue of mandatory retirement of firefighters at age 60. As noted at para. 4, the case follows a line of jurisprudence, including jurisprudence at the Supreme Court of Canada, upholding such provisions:

This is not the first time that the issue of whether mandatory retirement provisions for firefighters at age 60 violate the Code has been adjudicated. In Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, the Supreme Court of Canada upheld a decision of a Board of Inquiry that found such a provision contrary to the Code, on the basis that the evidence presented to justify it was largely “impressionistic”. However, since Etobicoke, age 60 mandatory retirement provisions contained in other firefighter collective agreements have been upheld as BFORs. In Hope v. St. Catharines (City) (1986), 1986 CanLII 6542 (ON HRT), 9 C.H.R.R. D/4635, the Ontario Board of Inquiry found that the respondents had met their onus to establish a BFOR. The Supreme Court of Canada made decisions to the same effect in cases from Saskatchewan: Saskatchewan (Human Rights Commission) v. Saskatoon (City), 1989 CanLII 18 (SCC), [1989] 2 S.C.R. 1297 and Saskatchewan (Human Rights Commission) v. Moose Jaw (City), 1989 CanLII 19 (SCC), [1989] 2 S.C.R. 1317. Similarly, in Large v. Stratford (City), 1995 CanLII 73 (SCC), [1995] 3 S.C.R. 733, the Supreme Court upheld an Ontario Board of Inquiry decision that found that an age 60 mandatory retirement provision for police officers was a BFOR.

14Espey was a complaint referred to the Tribunal by the Ontario Human Rights Commission under the old human rights system. The Commission’s role in that system was to represent the public interest. The Commission’s position was that changes to the legal landscape and scientific evidence since the decisions set out above meant that the result should be different. The Commission, the City of London and the London Professional Fire Fighters’ Association were represented by counsel, and the hearing took nine days. Each side called expert witnesses: the Commission called a cardiologist and the Association called both a physiologist and a cardiologist.

15Evidence was called about collective agreements across the province, and there is a specific reference to grievances about the application of the mandatory retirement provision in Hamilton: see paras. 9-12. It was clear that the case was considered a test case.

16The issue in Espey was whether the requirement that suppression firefighters retire at age 60 was justified as a BFOR in these circumstances, based upon the risk of cardiac events for firefighters. While the previous cases were not determinative since human rights law had evolved in the considerable period of time since they were heard, their principles and values were relevant in light of the evidence and the current framework of analysis. Espey, a recent case, has now clarified the analysis in light of Meiorin and other recent jurisprudence.

17Applying the Meiorin framework, I found, at para. 72 of Espey, that there was “no question” that the first two aspects of the test had been met:

There is no question that the respondents have met their onus to establish that the first two aspects of the test have been met. In light of the increasing risk of cardiac events with age, and the effects of a cardiac event on the work of a firefighter, it is evident that mandatory retirement is rationally connected to the work of a firefighter, to protect health and safety. It is also evident that this standard was adopted in good faith to promote the work-related purpose of protecting health and safety.

18I also concluded that the respondents had met their burden to demonstrate that mandatory retirement at age 60 is reasonably necessary to ensure health and safety of firefighters, and that accommodation of individual firefighters would result in undue hardship to the respondents. I noted that this was a “complex case with competing values” and that the “Tribunal must carefully balance the various relevant factors in the context of the evidence”.

19The Decision engaged in an extensive analysis of the relevant factors, principally the safety risks of firefighting, the possibility of individual testing, and the fact that the mandatory retirement provision had been agreed to between the bargaining agent and the employer: paras. 77-100. The conclusions and basis for the analysis were summarized as follows at para. 101:

I conclude that the respondents have met their burden of proof to justify the prima facie discrimination on the basis of age, based upon the combination of various factors that apply in the circumstances of this case. The risks of cardiac events for firefighters are significant and increase with age, in particular after age 60. The risk of an on-the-job cardiac event during emergency response is particularly high. There are particular factors about the occupation of firefighters that lead to an exceptionally elevated risk. While methods of individual testing are more accurate than age in the population at large, there exists no scientific research about whether such risk analysis can be done for firefighters, given the particular risks they face. Finally, the Association and the employer have agreed to this system, which avoids universal individual testing that may lead to prima facie discrimination on the ground of disability, includes protection through an unreduced pension and will apply to all firefighters equally as they age. Taking all this into account I conclude that the respondents have met their burden to demonstrate that Article 17 is reasonably necessary to accomplish its health and safety purposes and that modifying it would cause undue hardship.

20In particular, the Decision noted the difference between risk assessment of cardiac events and determining whether someone has the capacity to do an existing job. I noted that any method of risk analysis might have human rights consequences, stating as follows at paras. 89-91:

I also note that risk assessment involves assessing the chances of an event that might never happen, based upon statistics gathered by aggregating the experiences of individuals with particular characteristics. It is an educated guess, using a choice of factors based upon scientific research, about who has a higher susceptibility to cardiac events. It cannot be determined which individuals will in fact suffer cardiac events. The use of risk analysis is therefore somewhat different from adapting workplace requirements to known characteristics of individuals.

Different methods of risk analysis may have particular advantages and disadvantages from the standpoint of human rights values. There are, for example, potential human rights consequences to a system in which every firefighter, of any age, is analyzed on an individual basis using the methods proposed by Dr. Freeman. A firefighter forced to retire under age 60 because of a high level of risk could argue discrimination based upon disability or perceived disability.

Even if reliable evidence that individual testing is possible had been presented, in my view this would not necessarily be determinative of the issues in this case. The analysis, as the Supreme Court emphasized in its decision in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 12, is not whether individual risk analysis is impossible, but rather whether there is proof of undue hardship, “which can take as many forms as there are circumstances”.

Summary Hearings

21Rule 19A.1 reads as follows:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

22In Dabic v. Windsor Police Service, 2010 HRTO 1994, the leading case on summary hearings, the Tribunal stated as follows:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

23The standard of “reasonable prospect of success” does not involve the formalistic application of burdens of proof, but rather a global evaluation of the case, in context, as each party intends to present it. It involves an analysis of the evidence that will be called by each party in light of the full context of the case and the applicable legal tests: Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. For an application to proceed, there must be a basis beyond speculation and allegations: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389. An applicant is required to articulate and point to evidence that would form a basis for the Application to move forward in the Tribunal process. Where allegations have no reasonable prospect of success in all the circumstances, an Application should be dismissed following a summary hearing; a theoretical chance of success is not enough.

The Significance of Espey

24This Tribunal’s approach to decision making is based on consistent development and application of principles. While there is no formal doctrine of stare decisis in administrative tribunals, the HRTO strives to develop and maintain a coherent body of jurisprudence, allowing those affected by its decisions to organize their affairs based on what has been established and decided.

25There is no appeal from Tribunal decisions; judicial review is on the standard of reasonableness with a high degree of deference: Shaw v. Phipps, 2012 ONCA 155. Different approaches to an issue do not themselves create a basis for judicial review (Domtar Inc. v. Quebec (Commission d’appel en matière de lesions professionnelles), 1993 CanLII 106 (SCC), [1993] 2 S.C.R. 756), and it is the responsibility of administrative tribunals to develop approaches that facilitate coherent and consistent applications of principle: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282.

26In other circumstances, the Tribunal has dismissed Applications following a summary hearing, based on an application of previous jurisprudence. In Demone v. Ontario (Health and Long-Term Care), 2011 HRTO 1076, the Tribunal applied its decision in Cochrane v. Ontario (Health and Long-Term Care), 2010 HRTO 1477, to dismiss an application that challenged the same provincial program (prostate antigen screening) as the previous case. In Andrews v. Ontario Teachers’ Pension Plan Board, 2011 HRTO 45, and Arapis v. Ontario Teachers’ Federation, 2011 HRTO 2181, the Tribunal dismissed applications since the underlying facts mirrored those in Clarke v. Ontario Teachers’ Pension Plan Board, 2010 HRTO 1123, and the applicants had not shown why the Tribunal should depart from the reasoning in that case.

27An approach that relies upon the principles established in previous case law reflects the values applied by the courts in similar circumstances under the Charter. I find persuasive the comments of the Court of Appeal in Canada (Attorney General) v. Bedford, 2012 ONCA 186, at paras. 83-84 about the reconsideration of issues that have been found to be justified under s. 1 of the Charter. Although not directly binding because of the different context, these comments are highly relevant because, as under ss. 11 and 17 of the Code, the onus under s. 1 of the Charter is on the respondent to justify limits on rights:

In our view, the need for a robust application of stare decisis is particularly important in the context of Charter litigation. Given the nature of the s. 1 test, especially in controversial matters, the evidence and legislative facts will continue to evolve, as will values, attitudes and perspectives. But this evolution alone is not sufficient to trigger a reconsideration in the lower courts.

If it were otherwise, every time a litigant came upon new evidence or a fresh perspective from which to view the problem, the lower courts would be forced to reconsider the case despite authoritative holdings from the Supreme Court on the very points at issue. This would undermine the legitimacy of Charter decisions and the rule of law generally. It would be particularly problematic in the criminal law, where citizens and law enforcement have the right to expect that they may plan their conduct in accordance with the law as laid down by the Supreme Court. Such an approach to constitutional interpretation yields not a vibrant living tree but a garden of annuals to be regularly uprooted and replaced.

28Applying these principles in the context of the HRTO, in my view there is a higher onus than the applicant suggests on a party seeking to relitigate the analysis and findings in a recent case in a highly similar context. A party, whether applicant or respondent, seeking to challenge such findings must put forward evidence or a basis for analysis early in the Application process that establishes a reasonable basis, beyond mere speculation, that the result would be different in this case. Where principles have been established, parties should be required to put their best foot forward and justify why the Tribunal should proceed to hear detailed evidence and analysis on an issue in light of the previous jurisprudence. This ensures fairness to both sides and a litigation process that is proportionate to the issues before the Tribunal, avoiding spending multiple days of hearing on issues that have been decided and analyzed.

Application to This Case

29Espey is the latest in a series of decisions that have upheld mandatory retirement at age 60 for firefighters as a BFOR. It was decided just over a year before the applicant’s retirement took effect. The Commission represented the public interest, and there was detailed expert evidence that assisted in establishing the BFOR.

30The applicant’s submissions suggest that the Tribunal is required to hold a hearing in each case in which a firefighter challenges a mandatory retirement provision, and that each municipality and each firefighter association across this province is required to call expert evidence to support their particular provision. There is no reason to believe that the considerations behind mandatory retirement provisions, and whether they were implemented in good faith and for a work-related purpose, were different in collective bargaining in each of the many Ontario municipalities that have such provisions.

31Espey was clearly brought as a test case, with full evidence and argument. The analysis was detailed and relied on a combination of legal principle and the evidence in the particular case. The factual context in which this case arises is essentially the same, except that the parties are in a different municipality.

32The applicant’s argument that it cannot be shown that there is a rational connection between retirement at 60 and the performance of the job in the absence of individualized testing is directly contrary to the reasoning and factual conclusions in that case. The applicant takes arguments that were made and rejected at the third stage of the Meiorin analysis and argues them at the first stage. This does not provide a basis for relitigating the issues decided in Espey. The applicant has provided no reason to doubt this aspect of the analysis in that case.

33The applicant also relies upon the absence of a requirement that volunteer firefighters retire at age 60 in Hamilton, and the provision in that collective agreement for annual testing after age 60. A review of the volunteer firefighter collective agreement filed by the applicant in support of this argument, however, makes it clear that the requirements and job demands of volunteer firefighters are entirely different and much more limited than that of full-time firefighters. Article 1 of Schedule “A” reads as follows:

A volunteer firefighter will respond to an alarm when he is available to respond. Each firefighter shall determine at his discretion when he is available to respond to an alarm, subject to Article 17 – Attendance Requirements.

Article 17 requires attendance at a minimum of 25% of all station emergency responses and 50% of the weekly training nights for their assigned station. Given the dramatically different requirements, I do not believe that the fact that volunteer firefighters are not required to retire at 60 in Hamilton could lead to a finding that the balance would be struck differently than in London.

34Moreover, Espey held the making of different choices in different bargaining units did not mean that mandatory retirement at 60 could not be justified under the Meiorin test. At para. 97, I held that “there are various possible responses to the difficult choices involved in this issue that may fall within the range of what is consistent with the Code.” The fact there is a different regime for volunteer firefighters does not suggest that this Application has a reasonable prospect of success, in particular given the fact, as discussed in Espey, that any regime for testing may well constitute prima facie discrimination under the Code and have to be justified.

35After asking for an opportunity to provide further evidence in response to concerns I raised during the summary hearing, the applicant cited several articles that he suggests change the conclusions that were reached in Espey. I do not believe that they provide any basis to suggest that the result in this case would be different, in particular given that the unavailability of individual testing methods was only one of the factors relied upon in reaching the conclusion that the BFOR had been established.

36The applicant relies upon an article by a lawyer and retired paramedic firefighter in a publication called “Fire Engineering”. He suggests that this supports the proposition “that the vast majority of sudden cardiac events among firefighters are predictable” [underlining in original]. This article involves no original research, interprets previous statistical studies, and is focused on urging fitness programs and general health evaluations of firefighters. It does not provide any basis for relitigating the factual findings in Espey, based on detailed evidence from cardiologists expert in cardiac disease, about “whether and how the risk of a particular firefighter having a cardiac event could be evaluated, and how such an evaluation of risk would compare to merely using age” (para. 47).

37Second, the applicant relies upon articles that he says suggest that firefighters are in poor health relative to the general population. He cites articles that urge monitoring of blood pressure, obesity and other factors to reduce cardiovascular risk. The quotations from these studies relied upon by the applicant, however, do not say anything about the ability to predict cardiac events in a general population of firefighters, or talk about the comparison of the classification of risk on this basis to age alone.

38Finally, based on two articles located, one peer reviewed and the other unpublished, the applicant suggests that “science identified two very plausible and accurate methods of pinpointing heart disease and sudden cardiac events – Exercise Echocardiography and Electron Beam CT”. The applicant states that the first “is a recent, established technique for the diagnosis and risk stratification of patients with known or suspected coronary artery disease” [emphasis added]. The applicant does not provide any basis to suggest that it can be used for general evaluation of risk in a firefighter population. As noted at para. 54, the experts in Espey agreed that there are limitations to the usefulness in general of tests used for patients with heart disease in identifying risks in others. Moreover, the applicant has not provided any expert evidence that would analyze and interpret these studies and articles.

39The other study, which appears to be unpublished and not peer reviewed, merely conducted electron beam CT scans on a group of firefighters and identified calcium scores. It did not involve any analysis of the predictive ability of such scores for future cardiac events. Espey involved extensive evidence and analysis about the possibility of testing using CT scanning, discussed at paras. 60-63. This article does not constitute evidence that would establish a reasonable prospect that the result reached here would be different.

conclusion

40These Applications have no reasonable prospect of success because the applicant has shown nothing beyond speculation and allegations that demonstrates that there is a reasonable prospect that the result would be different than Espey. Espey was a test case decided shortly before the events in this case, and was based on a balancing of various factors in finding that mandatory retirement at age 60 was justified. The case was decided following extensive expert evidence, many hearing days, and a detailed analysis of factors that would apply in municipalities across Ontario. While the applicant disagrees with that analysis, in putting his case forward he has provided no basis or evidence to suggest that it would be fair or consistent with the coherent development of jurisprudence by the Tribunal to permit him to relitigate issues that have been decided so recently.

41For all these reasons, the Applications are dismissed.