Ostofi v. Hamilton Police Services Board, 2012 HRTO 2290

Human Rights Tribunal of Ontario

Between:

Gary Ostofi Applicant

-and-

Hamilton Police Services Board Respondent

Interim Decision

Adjudicator: Brian Cook Date: December 6, 2012 Citation: 2012 HRTO 2290 Indexed as: Ostofi v. Hamilton Police Services Board

Appearances

Gary Ostofi, Applicant Patricia Kennedy and Mark Zega, Counsel

Hamilton Police Services Board, Respondent Marco Visentini, Counsel

Hamilton Police Association, Respondent Joshua Phillips, Counsel

City of Hamilton, Respondent Brenda Glover, 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 with respect to employment because of age.

2The applicant is a police officer. The Application concerns two categories of allegations. The first category relates to provisions in the Collective Agreement concerning the operation of the group benefit and insurance plan. The applicant alleges that these provisions discriminate against him on the basis of age. The second category relates to allegations that the applicant's employer has discriminated against him on the basis of age by pressuring him to retire.

3The Application named as respondents the Hamilton Police Services Board ("the employer"), the Hamilton Police Association ("the Association"), and the City of Hamilton ("the City"). By Case Assessment Direction dated September 24, 2012, the Tribunal directed a summary hearing to clarify the scope of the Application, determine whether the allegations are covered by the Code, whether some or all of the allegations should be dismissed as having no reasonable prospect of success and whether the City should be removed as a respondent.

4The summary hearing took place by telephone conference call on November 9, 2012.

Decision

5I find that the applicant is not currently experiencing differential treatment with respect to the operation of the employer's health care benefit plan based on age. To the extent that his allegations are about differential treatment after he turned 65 in respect of the operation of the health care benefit plan, I find that this differential treatment is not a matter that is covered by the Code.

6I find that the differential treatment that the applicant has experienced in respect of the operation of the group life insurance plan is also not a matter that is covered by the Code.

7I find that the Tribunal may have jurisdiction to deal with the allegations that the applicant experienced age related harassment and discrimination in respect of pressure to retire. Those allegations are not sufficiently particularized to allow a determination about whether the allegations are timely and I direct the applicant to provide further particulars about those allegations.

Group Benefit and Insurance

8The parties agree that employees such as the applicant who continue to work past age 65 are or were treated differently from employees who are under age 65 and remain at work in the following ways:

• The applicant lost entitlement to group health benefits when he turned 65. The Association grieved this on his behalf and the employer agreed to extend benefits to employees up to the age of 70.
• spousal coverage is lost if the employee does not retire
• Insurance benefits are lost if the member is absent from work for more than 180 calendar days; and
• life insurance coverage is lower for employees over age 65.

The question is whether this differential treatment is covered by the Code.

Section 25 of the Code

9Section 25 of the Code provides:

25. (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.

10Pursuant to section 25(2.1) of the Code, an employee benefit plan or group insurance plan may provide for differential treatment based on age provided that the plan complies with the Employment Standards Act, 2000, S.O. 2000, c. 41 (the "ESA") and its regulations.

11Section 44(1) of Part XIII 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.

12Section 1 of Regulation 286/01 made pursuant to the ESA 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;

"health benefit plan" means a benefit plan that provides benefits to an employee, a spouse or a dependant of an employee or deceased employee for medical, hospital, nursing, drug or dental expenses or other similar expenses.

"life insurance plan" means a benefit plan that, on the employee's death, provides a lump sum or periodic payments to the employee's beneficiary, survivor or dependant, and includes accidental death and dismemberment insurance.

13The ESA and its regulations do not prohibit differential treatment in the provision of a benefit plan or a life insurance plan for persons under 18 or over 64.

14This means that a health care benefit plan that ceases to cover an employee who becomes 65 years of age or older, or a life insurance plan that provides different coverage for employees over 65, complies with the ESA and by virtue of s. 25(2.1) of the Code, also complies with the Code.

15It is not clear that the applicant is currently experiencing any differential treatment on the basis of age in respect of the operation of the health benefit plan.

16To the extent that any of the applicant's allegations about the operation of the health care benefit plan or life insurance relate to differential treatment after he turned 65, that differential treatment is not a matter that is covered by the Code.

17For all these reasons, I find that there is no reasonable prospect that the applicant could successfully show that he has experienced discrimination contrary to the Code because of the operation of the employer's group health care and life insurance plans. Those aspects of the Application are dismissed.

Age-related harassment

18The applicant alleges that he has been pressured or encouraged to retire and that this constitutes discrimination because of age. He alleges that he was given work assignments that were designed to encourage him to retire. He alleges that he has been subject to harassment by co-workers because he has chosen not to retire.

19He alleges that when he turned 60 he was told that his retirement papers had been filed although he was not required to retire.

20I agree with the respondents that it is not possible to assess whether there is no reasonable prospect that this aspect of the Application could succeed because the Application provides few details about this allegation.

21The Application in respect of the allegation that the applicant has experienced age-related discrimination because of pressure to resign and age-related harassment is not dismissed at this time. If the applicant wishes to pursue this aspect of the Application, he must provide submissions which detail the specific allegations, including information about what was said, who said it and when it was said.

Removal of the respondents

22At the summary hearing, it was agreed that the City of Hamilton had been named as a respondent only because of its involvement as the administrator of the group health benefit and life insurance plan. It was agreed that it was not necessary for the City of Hamilton to continue as a respondent.

23At the summary hearing the applicant indicated that the Association was a respondent because it was a party to the collective agreement and the provisions that resulted in the alleged differential treatment on the basis of age in the operation of the group health benefit and life insurance plan. The applicant agreed that if this aspect of the Application was dismissed, as it now has been, then it was not necessary for the Association to continue as a respondent. The applicant confirmed that the Association was not a party to the alleged pressure to resign or alleged age-related harassment.

24The Application against the City of Hamilton and the Hamilton Police Association is dismissed and the style of cause is amended to reflect that the only respondent is the Hamilton Police Services Board.

Decision

25The aspect of the Application that relates to the allegation that the applicant experienced discrimination on the basis of age in respect to the operation of the group health care benefit and life insurance plan is dismissed as having no reasonable prospect of success.

26The allegations that the applicant experienced age-related discrimination through pressure to resign and age-related harassment are not dismissed at this time.

27If the applicant wishes to pursue this aspect of the Application, he must provide a detailed summary of the allegations by December 21, 2012. The respondent may provide a response by January 18, 2013.

28The City of Hamilton and the Hamilton Police Association are removed as respondents to the Application.