Ostofi v. Hamilton Police Service, 2013 HRTO 1418

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Ostofi Applicant

-and-

Hamilton Police Service and Hamilton Police Services Board Respondent

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle Date: August 16, 2013 Citation: 2013 HRTO 1418 Indexed as: Ostofi v. Hamilton Police Service

WRITTEN SUBMISSIONS

Gary Ostofi, Applicant ) Patricia M. Kennedy, Counsel

1On December 6, 2012, the Tribunal issued an Interim Decision in this Application, Ostofi v. Hamilton Police Services Board, 2012 HRTO 2290, dismissing the Application in part. The applicant has asked the Tribunal to reconsider its Interim Decision.

BACKGROUND

2The Tribunal’s Interim Decision found in part as follows:

• to the extent that any of the applicant’s allegations about the operation of his 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.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and,

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

4The applicant seeks reconsideration and states that if reconsideration is granted, he requests an “Order allowing the aspect of the Application concerning allegations of differential treatment on the basis of age in the operation of the Respondent employer’s health benefits and group insurance plans to proceed to a full hearing on the merits”.

DECISION

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

6The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

9Under Rule 26.1, only “final” decisions qualify for a reconsideration request. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application. I am satisfied that the Interim Decision in the matter before me disposes of some of the central issues in the Application and, on this basis, the Tribunal’s reconsideration process is available.

10As indicated above, the applicant relies on Rule 26.5 (c) and (d).

11At paragraph 5 of the Interim Decision, the Vice-chair stated “I 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”. The Vice-chair then went on to state that “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 treatment is not a matter that is covered by the Code”. The applicant has framed his request for reconsideration with reference to the latter finding. The Interim Decision also permitted the Application to continue in the Tribunal’s process with respect to other of the applicant’s allegations regarding treatment in the workplace.

12At paragraph 8, the Interim Decision described the issue regarding the applicant’s group benefits and insurance as follows:

The 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 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.

13The Interim Decision then sets out provisions from section 25 of the Code:

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.

14The Interim Decision then stated the provisions of section 44(1) of the ESA:

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

15The Interim Decision also then cited provisions contained in Section 1 of Regulation 286/01 made pursuant to the ESA:

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 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.

16At paragraph 13, it concluded that “The 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”. In the Interim Decision, the Tribunal concluded as follows at paragraphs 14:

This 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.

17The applicant submits that the Interim Decision does not explicitly address his arguments regarding the matter of the applicability of the ESA to police officers. He submits that there is a “legislative drafting omission” which “must be addressed”. He submits that the reasons provided in the decision were not adequate as the Tribunal did not “provide reasons for why the Applicant’s argument that as a police officer, the ESA was not applicable to him, was not considered, or if it was in fact considered, why it was not successful.” He submits that the “Tribunal’s failure to provide adequate reasons for its Decision has resulted in a breach of the duty of fairness and the principles of natural justice”. He also submits that “in holding that section 25 (2.1) of the Code is applicable to the Applicant, the Tribunal has engaged in a further breach of natural justice”.

18The applicant submits that as the Legislature exempted police officers from the ESA, “it is not clear whether the Legislature also choose [sic] to exempt police officers from protection under the Code from age discrimination in the provision of benefits.” He submits that the decision is “in direct conflict with the well-established principles of statutory interpretation of human rights jurisprudence which demand that any ambiguity in rights-conferring legislation be interpreted in favour of the claimant”.

19In my view, the reasons in the Interim Decision are adequate and do address the applicability of section 25 of the Code. Even if I am wrong in this, however, I would deny the request for reconsideration. Having reviewed the material filed with the Tribunal, I would come to the same conclusion as was reached in the Interim Decision, for the following reasons.

20The applicant argues that the provisions of section 25 are ambiguous, and that there is a “legislative drafting omission”. In interpreting provisions of the Code, the Tribunal has had reference to principles of statutory interpretation, especially with reference to jurisprudence from the Supreme Court of Canada. At paragraphs 96 and 97 of Smith v. The Rover’s Rest, 2013 HRTO 700, for example, it states:

The Supreme Court of Canada has established that human rights legislation is to receive a wide and liberal construction that advances its objectives, but that courts and tribunals cannot ignore limiting words in the legislation, or otherwise circumvent the intention of the legislature. In University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, the Court stated at pp. 370-71:

(…) this Court has had many occasions to comment on the privileged status of human rights legislation. In Ontario Human Rights Commission v. Simpsons-Sears Ltd., supra, McIntyre J. observed (at p. 547) that ‘[l]egislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary – and it is for the courts to seek out its purpose and give it effect’. This Court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to human rights legislation, and that such legislation, according to La Forest J. in Robichaud, at p. 89, ‘must be so interpreted as to advance the broad policy considerations underlying it’. These comments serve to underline the importance of the mandate of s. 12 of the Interpretation Act, R.S.C., 1985, c. I-21, which directs that ‘[e]very enactment is deemed remedial and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.’

This interpretive approach does not give a board or court license to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.

Furthermore, in Landau v. Ontario (Finance), 2011 HRTO 1521, this Tribunal stated at para. 12:

While it may be helpful to refer to particular rules of statutory interpretation, the fundamental principle in interpreting any statue, including the Code, is to take a purposive and contextual approach. Statutes are interpreted in ‘their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Rizzo v. Rizzo Shoes Ltd. (re), [1998] S.C.R. 27 at para. 21; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42. In applying this principle in the context of the Code, rights are to be interpreted broadly and exceptions narrowly.

21At s. 3(4) and (5), the ESA excludes certain kinds of employees from its operation, and limits its operation with respect to certain other groups of employees. For example, individuals holding elected office in an organization, including trade union officers, are excluded from its provisions, employees of the Crown are excluded from certain provisions and police officers are excluded from most provisions. In examining the overall context of the Code, however, it is s. 24, “Special Employment”, which defines rights for certain persons largely according to the type of work they perform. There, the legislature has clearly set out the kinds of employment for which there are special provisions and it has not made any special mention of the exclusions found in the ESA. Accordingly, it is appropriate to interpret the provisions of s. 25 of the Code as being of general application, subject to s. 24, and not as introducing additional distinctions between the rights of persons based on the kind of work they perform.

22In deciding whether the Code should be interpreted as the applicant suggests, it is also relevant to consider the consequences of the interpretation he proposes. To import the entire scheme of exclusions from the ESA into s. 25 of the Code, which is essentially what the applicant suggests, would lead to incongruous results. For example, the collective agreement between the Police Services Board and the Police Association is included in the materials filed with the Tribunal by the City of Hamilton. It indicates that for pension purposes, some members of the Police Association are enrolled in the Ontario Municipal Employees Retirement System (“OMERS”) and some are enrolled in the Hamilton-Wentworth Retirement Fund. To accept the applicant’s proposed interpretation of s. 25 of the Code would mean that the same plan, for example, could be found to infringe the Code with respect to police officers, but not with respect to other municipal employees who are subject to the ESA. In other words, discrimination on the basis of age of some plan members would be permissible, but discrimination on the basis of age of police officers who are members of the same plan, would be found to violate the Code. This would be an absurd result, which does not resonate in the context of the overall scheme of the Code. A purposive and contextual reading of the Code would not indicate that this interpretation would be consistent with the intention of the legislature.

23Further, I am not persuaded that the provisions of s. 25 of the Code are ambiguous. The provisions of s. 25 of the Code define what kind of health care or insurance plan is acceptable according to the Code. It states that the plan must comply with the ESA and the regulations thereunder. It has not imported all of the provisions of the ESA, and has merely indicated that if an employee benefit, pension, superannuation or group insurance plan differentiates between employees on the basis of age, it must not run afoul of the ESA and its regulations.

24The question before the Tribunal in this case was whether the applicant’s benefit or insurance plan, which provided for different treatment for employees over 65, was differential treatment covered by the Code. In making this determination, the Tribunal considered section 25 of the Code, which states that an individual’s rights under section 5 are “not infringed by an employee benefit, pension, superannuation or group insurance plan” [emphasis added] which has certain characteristics. Section 25 of the Code is not a provision which deals with exclusion of employees. Section 25 of the Code addresses permissible characteristics for plans or funds. The analysis employed by the Tribunal properly interpreted section 25 of the Code, by reviewing whether or not the plan itself met the required characteristics.

25As noted above, in addition to his submission that the Interim Decision breached its duty of fairness by a “failure to provide adequate reasons for its Decision”, the applicant also submits that “in holding that section 25 (2.1) of the Code is applicable to the Applicant, the Tribunal has engaged in a further breach of natural justice”. To the extent that he states his disagreement with the Tribunal’s findings in the Interim Decision, the applicant is seeking to restate or re-argue his position. In Sigrist and Carson, the Tribunal stated that reconsideration is not an opportunity to re-argue a case.

26I am not convinced that any findings made in the Interim Decision are in conflict with established jurisprudence.

27The Tribunal also stated in Sigrist and Carson that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Interim Decision conflicts with established jurisprudence.

28In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. Even if I am wrong with respect to the adequacy of the reasons provided in the Interim Decision, I would have come to the same conclusion as did the Interim Decision, for the reasons stated above. The applicant’s request is denied.