Kartna v. Toronto (City), 2014 HRTO 395

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aarne Kartna

Applicant

-and-

City of Toronto

Respondent

-and-

Toronto Professional Firefighters’ Association, Local 3888

Intervenor

DECISION

Adjudicator: Paul Aterman

Date: March 20, 2014

Citation: 2014 HRTO 395

Indexed as: Kartna v. Toronto (City)

APPEARANCES

Aarne Kartna, Applicant

Self-represented

City of Toronto, Respondent

Darragh Meagher, Counsel

Toronto Professional Firefighters Association, Local 3888, Intervenor

Heather McConnell, Counsel

background

1This Decision deals with whether an allegedly discriminatory distinction is permitted by the exemption found in s. 25(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On consent of the parties, the Toronto Professional Firefighters Association, Local 3888 is added as an intervenor in this Application.

3The basic facts in this Application are not in dispute between the parties. The applicant worked for the respondent. He began receiving long-term disability (“LTD”) benefits in April of 2011. When he reached the age of 65 on September 3, 2013 his benefits were terminated.

4The Collective Agreement between the respondent and the intervenor states that the respondent will provide an LTD plan for employees on terms that are negotiated between the respondent and the LTD benefits administrator, in this case Manulife Financial. The plan provides LTD benefits for employees, but the benefits stop at the end of the month in which an employee who is receiving benefits turns 65.

5The applicant filed this Application because he believes that the termination of LTD benefits at age 65 is discriminatory on the basis of age.

6A summary hearing was held on March 17, 2014 to determine if the Application has a reasonable prospect of success. For the reasons which follow I conclude that the Application must be dismissed.

the exemption in s.25(2.1) of the code

7The Code prohibits discrimination on the basis of age. The relevant section reads:

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.

8The term “age” is defined in s.10 of the Code to include the status of being over the age of 18, as the applicant is. There is no upper limit on the Code’s definition of age.

9The Code then provides an exemption for differential treatment on the basis of age in group insurance contracts. However, the exemption is limited in the sense that the differential treatment cannot be inconsistent with what is prescribed by the Employment Standards Act, 2000, S.O. 2000, c.41 (the “ESA”), and the regulations made under the ESA. The relevant parts of the Code read:

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 have in this Act.