Talos v. Grand Erie District School Board, 2013 HRTO 1949

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Talos Applicant

-and-

Grand Erie District School Board Respondent

INTERIM DECISION

Adjudicator: Ruth Carey Date: November 26, 2013 Citation: 2013 HRTO 1949 Indexed as: Talos v. Grand Erie District School Board

APPEARANCES

Wayne Talos, Applicant Self-represented

Grand Erie District School Board, Respondent Richelle Pollard, Counsel

INTRODUCTION

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and contracts because of age, and reprisal.

2This Interim Decision follows from a summary hearing held pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

3In a Case Assessment Direction (“CAD”) issued on August 23, 2013, the Tribunal sets out the relevant background to the summary hearing as follows:

The applicant is a teacher employed full time by the respondent Board. Pursuant to a collective agreement between the respondent and the Ontario Secondary School Teachers’ Federation, District 23 (the “Union”), the respondent makes available to employees a benefits plan that is underwritten by an insurer. At age 65 all benefits under the plan cease. The primary issue in the Application is whether or not this cessation of benefits at age 65 constitutes a breach of the Code.

The Application also claims reprisal. The reprisal allegation concerns an agreement reached between the respondent and the Union whereby the respondent agreed to provide bridge funding until a new collective agreement was negotiated in the form of lump sum payments to employees over the age of 65 so they could purchase replacement benefits. The Application alleges that this bridging agreement required the Union to waive the right to pursue legal remedies with respect to the cessation of benefits at age 65.

By way of Case Assessment Direction (“CAD”) issued on February 5, 2013, the Tribunal granted the respondent’s request for a summary hearing to determine whether or not the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application will succeed. The CAD stated that one of the issues to be addressed at the summary hearing was whether or not the exemption contained in s. 25(2.1) of the Code applied such that there was no reasonable prospect of success with respect to the claim about health benefits. S. 25(2.1) says:

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.

On August 13, 2013, the applicant filed with the Tribunal Notice of Constitutional Question (the “Notice”). The Notice indicates the applicant intends to argue that s. 25(2.1) of the Code contravenes section 15 of the Charter of Rights and Freedoms.

4The CAD of August 23, 2013, said that the summary hearing would proceed as originally set out in the Tribunal’s previous CAD of February 5, 2013, and the constitutional issue would be addressed at a later date.

5The issues for the summary hearing can be summarised as follows:

a. Does s. 25(2.1) of the Code mean that the allegations in the Application of discrimination on the basis of age have no reasonable prospect of success unless the applicant’s constitutional challenge to s. 25(2.1) succeeds?

b. Does the allegation of reprisal in the Application have no reasonable prospect of success; meaning, can the applicant point to some evidence that would support the elements required to establish a breach of s. 8 of the Code?

6The summary hearing was held via teleconference on August 28, 2013.

ANALYSIS

7Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

8With respect to this Application the focus of the summary hearing is on the first type of analysis described above.

The Allegations of Discrimination on the Basis of Age

9There is no dispute between the parties that under the contract for group insurance between the respondent and its insurance carrier, the applicant’s entitlement to benefits ended when he reached 65.

10Section 25(2.1) of the Code says this kind of differential treatment on the basis of age is not discrimination if the benefit or group insurance plan complies with the Employment Standards Act, 2000 (“ESA”) and the regulations thereunder. The applicant argues that the respondent’s benefit or group insurance plan does not comply with the ESA and its regulations.

11Section 44(1)1 of the ESA says:

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.

12The phrase “except as prescribed” means that exceptions to the general rule set out in s. 44(1) of the ESA can be carved out by way of regulation.

13The ESA does not define “age” but section 1 of Ontario Regulation 286/01 passed pursuant to the ESA says in part:

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

14The prohibition against differential treatment in benefits and group insurance plans contained in s. 44 of the ESA is found in Part XIII. Therefore, what s. 44(1) means is that a benefit or group insurance plan offered by an employer cannot differentiate on the basis of age for employees who are between 18 and 65, but it can differentiate on the basis of age where the employees are under 18 or 65 and over.

15During the summary hearing the applicant essentially asserted two arguments with respect to s. 44 of the ESA. First, he argues that the phrase “treats … persons differently” should not be interpreted in a discriminatory manner; rather the differentiation must be based on bona fide and legitimate reasons. I took this to mean the differentiation cannot be arbitrary but must have an evidentiary basis justifying it. Second, the applicant relies on decisions of labour arbitrators for the proposition that where a benefit plan is provided by an employer under a collective agreement that purports to differentiate between employees on the basis of age, the collective agreement must say so clearly and unambiguously.

16The problem with these arguments advanced by the applicant is that neither has any basis in the wording of the ESA or the Code.

17With respect to the argument that “treats … persons differently” should be interpreted to mean that the differential treatment must be based on bona fide and legitimate reasons, doing so would not have the result the applicant desires. If s. 44 is interpreted to mean that differences in treatment under a benefit plan must be evidence based and bona fide, it still would not change the fact that the definition of “age” under the regulation is such that it only applies to employees between the ages of 18 and 65.

18I believe what the applicant is really saying with this argument is that distinctions in employee benefit plans on the basis of age should only be permitted where the distinction can be justified on actuarial grounds; using 65 as a marker for entitlement is arbitrary and not evidence based. This statement of what the applicant believes the law should be does not assist in interpreting s. 44 of the ESA or change what the Code, the ESA, and the regulation under it actually say. A plain reading of the provisions makes it clear that the intent of the legislature was to permit employers to offer benefit plans that exclude employees who reach age 65 no matter how arbitrary or irrational that may be.

19With respect to the argument based on the arbitral jurisprudence, some of the cases the applicant relies on do not stand for the proposition that the applicant advances.

20For example, the applicant filed with the Tribunal the Supreme Court of Canada’s decision in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. That case stands for the principle (at para. 1) that:

a grievance arbitrator has the power and responsibility to enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement.

21Similarly, Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 provided by the applicant, does not say anything about employer benefit plans. It involved a probationary employee whose employment was terminated when she returned from maternity leave. The employee grieved her termination even though the collective agreement specifically stated that probationary employees had no grievance rights. The issue was whether or not the arbitrator had jurisdiction to hear the grievance. The Supreme Court determined that the arbitrator did on the basis that the Code and the ESA form part of any collective agreement and the grievor’s complaint was related to her rights under those statutes. The applicant also filed with the Tribunal British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., 2005 BCCA 92, in which the British Columbia Court of Appeal found that an arbitrator had jurisdiction to hear a grievance involving class size even though limitations on class size were no longer a matter for collective bargaining but rather dictated by statute. Neither of these cases is relevant to the issue here.

22Both parties provided the Tribunal with Chatham-Kent (Municipality) and O.N.A. (O’Brien) (Re), 202 L.A.C. (4th) (October 31, 2010), a decision of Arbitrator B. Etherington in which the arbitrator concludes that s. 25(2.1) of the Code violates s. 15(1) of the Charter of Rights and Freedoms but is constitutional as it is saved by s. 1. The arbitrator also states in that decision that s. 25(2.1) of the Code means it is not discrimination for an employer to offer a benefits plan that excludes employees 65 and older. As a result, it does not support the position of the applicant.

23However, the applicant also filed with the Tribunal Strathroy-Caradoc Police Association v. Municipality of Strathroy-Caradoc Police Services Board, 2012 CanLII 51946 (ON LA). It involves an employee who, like the applicant here, was told by her employer that she was no longer entitled to benefits under the employer’s benefits plan as she had reached 65. The issue before the arbitrator was whether or not this discontinuance of benefits breached the collective agreement between the employer and the union representing the employee. At paragraph 16 the arbitrator writes:

The amendments to the Human Rights Code ended the requirement that employees retire at age 65. The amendments permitted employers to maintain benefit plans that provided different (or no) benefits to employees who continued to work past 65 years old. In the collective bargaining context, arbitrators have to figure out whether the union and the employer have negotiated a benefit plan that differentiates between employees who are older than 65 years. [Emphasis added.]

24The arbitrator goes on to interpret the collective agreement between the parties and determines that the agreement was that the employer would provide benefits to all members without age restriction. Therefore, when the employer purchased or maintained an insurance policy which did not provide benefits to those 65 and over, the employer breached the collective agreement. In interpreting the collective agreement the arbitrator relied on another decision by a different arbitrator, City of London v. Canadian Union of Public Employees, Local 107, [2010] O.L.A.A. No. 347, for the principle that:

The finding of an intention to differentiate on such grounds [age] should require clear and unambiguous language to indicate such an intention.

25The applicant relies on this statement in support of the proposition that because the collective agreement between the respondent and the applicant’s union does not explicitly say benefits will only be provided to employees up to age 65, the respondent’s failure to provide the applicant with benefits after reaching age 65 is discriminatory.

26The Tribunal is not charged with hearing a grievance under the collective agreement between the applicant’s union and the employer. The question before the Tribunal is whether or not the applicant’s rights under the Code may have been breached by the respondent because its benefits plan provides no benefits to the applicant as he has reached age 65. On a grievance the question would be whether or not the respondent and the union agreed in their collective agreement that the employer would provide benefits to employees beyond 65. Therefore, the question of how an arbitrator might interpret the terms of the collective agreement and the respondent’s obligation to provide benefits to the applicant under it is not relevant.

27This issue came before the Tribunal in Repaye v. Flex-N-Gate Canada, 2012 HRTO 1258. At paras. 20-22 the Tribunal writes:

… the applicant… 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.

In my view, even if [the applicant] 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.

An 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. [Emphasis added.]

28Given all of the above, I find that s. 25(2.1) of the Code means that the allegations in the Application of discrimination on the basis of age have no reasonable prospect of success unless the applicant’s constitutional challenge to s. 25(2.1) succeeds. If it does not, then this part of the Application shall be dismissed.

The Reprisal Allegation

29There is no dispute between the parties that the issue of benefits and employees age 65 and over was a topic of discussion between the applicant’s union and the respondent prior to the applicant turning 65. These discussions were not part of the collective bargaining process as there was a collective agreement in place at the time.

30On November 24, 2011, the respondent formerly offered the applicant’s union a temporary agreement to address the situation of employees over 65 until the next collective agreement could be negotiated. The agreement says the respondent will pay an annual lump sum in lieu of benefits to any affected employees. It also says:

The Union hereby covenants and agrees that they will not initiate any claim, action or proceeding of any type or nature, in any court, tribunal, or any other administrative or judicial type body or agency against the Board regarding issues related to the continuation of benefits for affected employees who actively work at age 65 and beyond. It is understood that the Union acknowledges such an arrangement is not a violation of the Human Rights Code and that it will not initiate any grievance, complaint, application or action relating to this matter whether at arbitration, in the courts or at the Human Rights Commission.

31On February 1, 2012, the respondent wrote to the applicant to notify him that his entitlement to benefits would be ending March 31, 2012, as the applicant was turning 65 on March 8, 2012. On February 22, 2012, the applicant wrote back as follows:

This letter is to inform you that I do not accept the [respondent’s] elimination of my health and insurance benefits based upon the factor of age discrimination in employment. Age discrimination is unlawful in the workplace according to the Employment Standards Act, Ontario Human Rights Code and Charter of Rights and Freedoms (s.15)…

I also hereby notify [the respondent] that I neither accept now or in the future any agreement or conditions entered into with the [union] which would unlawfully forfeit or protract my human and civil rights based upon the condition of age discrimination in employment. Although the [union] is mandated and entrusted to negotiate contractually for various types of benefits and premiums on behalf of educators, it is not vested with the legal right to abrogate my inalienable human rights…

In the event the [respondent] fails or refuses to provide full and complete coverage for any and all benefits previously received for both myself and spouse accruing from the consequence of differential treatment founded specifically upon age discrimination, I hold it legally accountable for any and all future legal or monetary damages sustained.

32The applicant alleges that the respondent refused to pay the affected employees any of the lump sum on offer unless the union agreed not to grieve the benefits issue. The applicant states that it is this aspect of the respondent’s conduct that constitutes reprisal; namely, the threat to not pay the lump sum unless the union signed the agreement. The applicant’s union accepted the respondent’s offer and they formally entered into the agreement described above on March 23, 2012.

33As a result of that agreement, the applicant’s union is essentially estopped from pursuing a grievance on the applicant’s behalf with respect to the cessation of his benefits.

34Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

35The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

36To put it simply, the prohibition against reprisal in section 8 means that if you stick up for your or someone else’s rights, you should not be punished for it or threatened with adverse consequences. There is no question here that the applicant stuck up for his rights. Rather the questions are: did the respondent threaten the applicant or subject him to adverse treatment; and if so, was the threat or adverse treatment intended to punish or harm the applicant for asserting his rights? In the context of a summary hearing, the question to be explored is: can the applicant point to some evidence that might support the conclusion that the answer to both those questions is yes.

37According to the applicant the threat or adverse treatment that is the subject of his reprisal claim is the behaviour of the respondent in negotiating with the union; namely, the Application asserts that the respondent refused to pay the lump sum in lieu of benefits to the affected employees who were 65 years old and older unless the applicant’s union signed the agreement saying it would not pursue any grievances related to the issue. The applicant does not take the position that the signing of the agreement itself was reprisal.

38Assuming without finding that a threat made to the applicant’s union can constitute a reprisal against the applicant under section 8, the difficulty with this allegation in the Application is that an offer to give a group of employees money the respondent asserts they are not legally entitled to does not constitute a threat or punishment. The respondent takes the position that it was under no legal obligation to pay affected employees like the applicant anything when they lost their benefits. To argue that the respondent threatened to withhold the lump sum payments is to mischaracterise what occurred. The respondent did not threaten to withhold anything; it offered to give something in exchange for the union’s promise not to litigate. This was an offer that the union was free to accept or refuse. The applicant’s real problem is that the union chose to accept the respondent’s offer and the adverse impact suffered by the applicant is that he cannot now rely on his union to grieve the loss of his benefits. That is a matter between the applicant and his union.

39As there is no evidence that the applicant can point to of a threat or an adverse action taken against him by the respondent there is no reasonable prospect that the allegation of reprisal in the applicant can succeed.

Miscellaneous

40In the applicant’s written submission with respect to the summary hearing and during the hearing itself, the applicant raised a new allegation that is not contained in the Application. He alleges that the amount of the lump sum benefit that the respondent is paying the affected employees pursuant to its agreement with the applicant’s union is less than the amount of funding received by the respondent for benefits from the province. Although the agreement does not explicitly say so, it was apparently the understanding of the parties to it that all of the funding received from the province for benefits for the affected employees would be paid to them less statutory deductions.

41Accepting without finding that the applicant’s allegations in this regard are true, they cannot constitute the basis for a finding that the respondent is in breach of the Code absent a successful constitutional challenge to s. 25(2.1).

42The Tribunal does not have the jurisdiction to deal with issues of general unfairness. The Code deals with differential treatment. The applicant is essentially arguing that he does not get the benefit of all of the funding from the province in comparison to those employees under 65 who presumably do. Even if this is true, s. 25(2.1) of the Code would still apply and operate as a defence. A payment in lieu of benefits is still a benefit of employment. Therefore it is not discrimination for the respondent to pay an amount in lieu of benefits to employees age 65 and older that is less than the funding received from the province even if the respondent spends more or all of its provincial funding to purchase benefits for employees under 65.

NEXT STEPS

43The Application will proceed through the Tribunal’s hearing process with respect to the applicant’s constitutional challenge to s. 25(2.1).

44In the Application and Response the parties indicate their consent to mediation. The parties are directed to notify the Registrar within 14 days of this Interim Decision as to whether or not they still wish to participate in mediation.

45The Ontario Human Rights Commission may, in accordance with s. 37(1) of the Code, intervene in an Application under s. 34 on such terms as the Tribunal considers appropriate. The Commission may also intervene in an Application with the consent of the applicant. A copy of this Interim Decision will be forwarded to the Commission for its consideration.

ORDER

46The Tribunal orders or directs the following:

a. The allegation in the Application with respect to reprisal pursuant to section 8 of the Code is dismissed;

b. The question of the constitutionality of s. 25(2.1) of the Code shall continue in the Tribunal’s normal hearing process;

c. The parties are directed to notify the Registrar within 14 days of this Interim Decision as to whether or not they still wish to participate in mediation.