Sobhi v. Bombardier Inc., 2012 HRTO 2302

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Masoomeh Sobhi

Applicant

-and-

Bombardier Inc.

Respondent

DECISION

Adjudicator: Alan G. Smith

Date: December 6, 2012

Citation: 2012 HRTO 2302

Indexed as: Sobhi v. Bombardier Inc.

APPEARANCES

Masoomeh Sobhi, Applicant

Self- represented

Bombardier Inc., Respondent

Marie Cousineau, Counsel

BACKGROUND

1The applicant filed an Application with the Tribunal on December 29, 2011 pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code”), alleging discrimination in employment because of disability and age.

2Pursuant to section 43(2) of the Code and Rule 19A of the Tribunal’s Rules of Procedure, a summary hearing by teleconference was held before me on July 11, 2012. The purpose of the summary hearing was to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that it would succeed.

3The parties both made oral submissions during the summary hearing. The Application and the respondent’s written submissions were also considered by me.

FACTS

4The facts are not in dispute. The applicant was born on December 29, 1945. She began her employment with the respondent in 1985. In 2002 she suffered a workplace injury and was declared permanently disabled by the Ontario Workplace Safety and Insurance Board (“WSIB”) in December of 2003. The applicant received WSIB benefits until December 30, 2010, her 65^th birthday.

5The applicant was offered, and declined, retirement packages by the respondent a total of seven times in relation to layoffs announced in her job classification between 2006 and 2010.

6The terms of the respondent’s pension plan allow employees to retire at age 65 but the employee can continue to work up to the age of 70.

7The applicant retired from the respondent effective January 1, 2011, and began receiving payments from the respondent’s pension plan. The terms of the plan also entitle all retirees to insurance coverage for medical expenses, but not dental and disability coverage.

ALLEGATIONS

8The applicant alleges Code related discrimination on the part of the respondent in three respects:

• She was forced to retire from the respondent at age 65 because she is disabled;
• Because of her disability she did not receive a “severance” package at the time of her retirement;
• Because of her disability and age she did not receive dental insurance and long term disability insurance coverage after her retirement.

ANALYSIS

9Rule 19A.1 reads as follows:

19A.1 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.

10In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

11During the course of the hearing the applicant acknowledged that she decided to retire on her 65^th birthday because, since her WSIB benefits had ended, she needed the pension income. She acknowledged that she could have elected to retire later, but had voluntarily decided to take retirement. Thus, I find that the applicant’s first allegation cannot be sustained.

12Also during the hearing the applicant admitted that the retirement allowance (referred to above as a “severance” package) offered to her between 2006 and 2010 was governed by the collective agreement between her bargaining agent, CAW Local 112, and the respondent. The applicant agreed that the allowances were offered, pursuant to the collective agreement, as incentives for employees to retire early i.e., before the age of 65. The applicant further agreed that there were no financial packages offered systemically to retirees at age 65, and hence she had no evidence of any discriminatory behaviour on the part of the respondent with respect to the retirement allowances. Accordingly, I find that the applicant’s second allegation is unsubstantiated.

13The applicant’s final allegation with regard to disability based discrimination also cannot succeed. The applicant argues that she is being discriminated against based on her disability because she cannot provide work to the employer and therefore is not receiving the same employee benefits as those providing work to the employer. However, in O.N.A. v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692 (Ont. C.A.), leave to appeal refused (1999), 252 N.R. 196 (note) (S.C.C.), the Ontario Court of Appeal stated:

Employee benefits for disabled employees not providing work should not be compared with those received by employees providing work. However, employee benefits which are not compensation for work must be the same for all employees, whether actively employed or on leave.

The applicant is receiving the same benefits as any other retiree of the respondent. There is therefore no evidence of discrimination based on disability.

14The applicant also argues that she is being discriminated against based on her age because the respondent’s benefit plan coverage for dental and long term disability do not extend beyond the age of 65. However, s. 25 (2.1) of the Code states:

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

15Part XIII of the Employment Standards Act, 2000, S.O. 2000, c. 41, (“ESA”) deals with Benefit Plans and s. 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….

16Regulation 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…

“benefits” includes,

(b) any medical, hospital, nursing, drug or dental expenses or other similar amounts or expenses paid under a benefit plan…

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

17Section 44 of the ESA, is in Part XIII. Pursuant to the Regulation, “age” for the purpose of s. 44 means any age between 18 and 64. This means that s. 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.

18In the present case, this means that a short or long term disability plan and dental insurance 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.

19Of course, an employer may choose to extend benefits to employees who are 65 and over. However, a failure to do so as in the present case cannot be challenged based on the provisions of the Code. See, Repaye v. Flex-N-Gate Canada, 2012 HRTO 1258.

20For the above reasons, I find that there is no reasonable prospect that the Application could succeed.

ORDER

21The Application is dismissed.