Yunger v. Toronto (City), 2014 HRTO 1603

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eli Yunger

Applicant

-and-

City of Toronto

Respondent

-and-

CUPE, Local 79

Intervenor

DECISION

Adjudicator: Mary Truemner

Date: October 30, 2014

Citation: 2014 HRTO 1603

Indexed as: Yunger v. Toronto (City)

APPEARANCES

Eli Yunger, Applicant

Self-represented

City of Toronto, Respondent

Jeffrey Board, Counsel

CUPE, Local 79, Intervenor

J. James Nyman, 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 because of age.

BACKGROUND

2The applicant worked for the old City of Toronto prior to its amalgamation in 1997 with other municipalities that now make up the new City of Toronto, the respondent to this Application. The old City of Toronto and the old municipality called North York each offered retirement plans with benefits that the other old municipalities did not offer their employees. After amalgamation, the respondent and the applicant’s union, CUPE Local 79, (“the Union”) which is an intervenor in this Application, negotiated a collective agreement for all of the respondent’s employees. With respect to employees who had previously been employed with the old City of Toronto and North York, it contained the following note (“the Note”):

Any employee who is eligible for retiree benefits beyond age 65 at the time that this Collective Agreement is ratified shall continue to be eligible for said benefits.

3At the time of amalgamation, the old City of Toronto provided post-65 retirement benefits to employees with ten years of credited pensionable service as long as they were at least 55 years old when they retired. On January 1, 1999, this requirement to be within 10 years of normal retirement age was changed so that a retiring employee only needed to be within 15 years of normal retirement age. Had the old City of Toronto not been amalgamated, and had he continued as its employee, the applicant would have received post-65 retirement benefits upon retirement provided that when he retired he was within 15 years of normal retirement age, defined as age 65, and provided that he had 10 years of credited pensionable service.

4At the time the collective agreement with the Note was ratified on May 11, 2000, the applicant had 22 years of service and was 46 years old. The applicant retired at the age of 55 in 2009.

5After ratification of the Collective Agreement on May 11, 2000, it became apparent that the City and the Union disagreed about the interpretation of the Note.

6The Union understood that the Note meant that employees, previously employed with North York or the old City of Toronto, were entitled to post-65 retirement benefits, even if they were not eligible for them on the date of ratification, provided that they were eligible upon retiring, whenever that might be. The City understood that the Note meant that only North York and old City of Toronto employees with sufficient years of service who met the eligibility criteria for benefits as of the date of ratification (who were 50 years old on May 11, 2000) were entitled to the retirement benefits.

The Union’s Policy Grievance

7The Union filed a policy grievance with respect to the Note. In 2006, Arbitrator Herman concluded that the City’s interpretation was correct, and he dismissed the grievance. The Ontario Divisional Court found that Arbitrator Herman’s decision was reasonable and dismissed the Union’s application for judicial review. (Canadian Union of Public Employees, Local 79 v. Toronto (City), 2009 CanLII 18287).

Individual Grievances

8After the Divisional Court issued its judicial review decision of Arbitrator Herman’s award, five individual grievances came before a different arbitrator, Arbitrator Randall, in another arbitration proceeding. These grievances alleged, amongst other things, that the Note, as enforced by the City, contravenes the Code on the basis of age. Arbitrator Randall declined to take jurisdiction over the grievances and dismissed them.

9On an application for judicial review by the Union, the Divisional Court found Arbitrator Randall’s decision to be reasonable. (Canadian Union of Public Employees, Local 79 v. Toronto (City), 2012 ONSC 1158).

The Application

10The applicant filed this Application alleging that the respondent, through its enforcement of the Note as interpreted by Arbitrator Herman, is discriminating against him because of age because the respondent says that it will refuse to provide him with post-65 benefits, “(medical, dental, eye care, drugs)”, given that he was not yet 50 years old when the Note was ratified.

11The respondent requested that the Application be dismissed under Section 45.1 of the Code on the basis that another proceeding appropriately dealt with the substance of the Application. The respondent also argued res judicata, issue estoppel and an abuse of process to support its request. After a preliminary hearing, I denied the respondent’s request to dismiss (2013 HRTO 962).

12In its Response, the respondent had also requested that the Tribunal provide a summary hearing, and the Tribunal arranged for one by way of conference call to address whether there is no reasonable prospect of success for the Application given exemptions for age discrimination in the Code in and the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”). It was held on August 28, 2014.

summary hearing

13The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is 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.

14In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

15As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code...

16The issue at the summary hearing in this case was whether there was no reasonable prospect of success for the Application because an age exemption in the Code appears to exempt the respondent’s age requirement for post-65 benefits.

17Prior to the summary hearing, the respondent filed a book of authorities. At the summary hearing, the applicant, respondent and intervenor made oral submissions. The respondent indicated that it did not wish to pursue the dismissal of the Application on the basis of prematurity.

18After hearing the arguments of the parties, I reviewed the pleadings, the respondent’s book of authorities, as well as the written submissions of the parties filed prior to the first preliminary hearing which resulted in my Interim Decision, 2013 HRTO 962.

analysis

19Section 5(1) of the Code provides as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

20Section 25 of the Code provides in part as follows:

(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.

21Section 44(1) of the ESA prohibits an employer from providing a benefit plan to employees that differentiates on the grounds of age unless the differential treatment is permitted in a Regulation to 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.

22Section 1 of Regulation 286/01 made pursuant to the ESA includes the following definitions:

1. For the purposes of Part XIII of the Act [where s.44 is located in the ESA] and this Regulation,

“age” means any age of 18 years or more and less than 65 years

“benefits” includes,

(a) an aggregate, annual, monthly or other periodic amount or the accrual of such an amount to which an employee, or the employee’s beneficiaries, survivors or dependants is, are or will become entitled under a benefit plan provided on superannuation, retirement, disability, accident or sickness,

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

(c) any amounts under a benefit plan to which an employee is entitled on termination of employment or to which any person is entitled upon the death of an employee

23The ESA, therefore, does not prohibit differential treatment in the provision of a benefit plan for persons under 18 or over 64.

24As stated by the Tribunal in Ostofi v. Hamilton Police Services Board, 2012 HRTO 2290, this means that a benefit plan that does not cover an employee who is 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.

25While the respondent made several references to the Pension Benefits Act, R.S.O. 1990, c. P.8 (“PBA”), I agree with the Union’s position that the benefits at issue in this case are not a pension, and the PBA is not a required component of the analysis of whether there is no reasonable prospect for the Application to succeed.

26The applicant and the Union argued that the differential treatment, the denial of the benefit plan, is with reference to his age at the time of ratification of the collective agreement, a date when he had not yet attained the age of 50. I do not agree with their analysis.

27The differential treatment, the denial of the post-65 medical benefits, is yet to be experienced by the applicant and will occur after the applicant is 65 years old. Therefore, the denial of post-65 benefits for the applicant complies with the ESA and, because it complies with the ESA, the denial is not a matter that is covered by the Code given s.25(2.1). As a result of this exemption to age discrimination in the Code, I find that there is no reasonable prospect that the applicant could successfully demonstrate that the denial of post-65 benefits discrimination is contrary to the Code.

order

28The Application is dismissed.