Mumby v. General Motors of Canada Limited, 2015 HRTO 1470

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Mumby

Applicant

-and-

General Motors of Canada Limited and Unifor Canada

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: November 3, 2015

Citation: 2015 HRTO 1470

Indexed as: Mumby v. General Motors of Canada Limited

APPEARANCES

Ronald Mumby, Applicant

Bruce Best, Counsel

General Motors of Canada Limited, Respondent

David Bannon, Counsel

Unifor Canada, Respondent

Anthony Dale, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the provisions of his pension plan that permit the deduction of workers’ compensation benefits from his early retirement benefits, while allowing other early retirees to retain significant earnings from employment, contravene section 5(1) of the Code.

the facts

2The following facts are taken from the parties’ Agreed Statement of Facts.

3The applicant commenced his employment with General Motors of Canada Limited (“General Motors or GM”) in 1977. He was injured on the job in 1998 and qualified for benefits under the Workplace Safety and Insurance Act, 1997. He continued working with modified duties until 2003, at which point General Motors advised him that there was no suitable work available.

4The applicant was referred for labour market re-entry (“LMR”) on March 17, 2004. Medical reports at this time indicated that the applicant was not fully disabled and was capable of returning to work with restrictions.

5While in the LMR program, the applicant was placed in a Suitable Employment or Business (“SEB”) of customer service training.

6The applicant performed well in the LMR program, but indicated no intention of seeking employment. His progress reports stated that he did not see much incentive in trying to secure a new job and no longer being an employee of General Motors who could retire in two years. The reports indicated further that the applicant was not going to look for work and intended to live on his loss of earnings benefits. In an undated summary report on the applicant’s job search training, it noted that the applicant “stated clearly from the beginning that his intention was not to search for employment”. The applicant completed his LMR program on March 4, 2005.

7After completing the LMR program, the Workplace Safety Insurance Board (“WSIB”) determined that the applicant was entitled to partial loss of earnings (“LOE”) benefits equal to 85% of the difference between his pre-accident earnings at General Motors ($29.35/hr at 40 hrs/week) and the accepted SEB rate ($10.35/hr at 30 hrs/week).

8Under the pension plan, an employee with 30 years of credited service may elect to take early retirement. The applicant reached his 30 years in April 2007 and took early retirement at that time. The applicant was 48 years old.

9An employee who takes early retirement after 30 years of credited service is entitled to receive a basic pension benefit, plus bridging benefits and special allowance benefits (“early retirement benefits”) until the age of 65. The purpose of the early retirement benefits is to supplement the income of retirees until they turn 65 and become eligible for government-funded retirement benefits. The applicant’s pension was comprised of the following monthly amounts which were paid in addition to his LOE benefits:

Basic Benefit............................................... $ 708.88

Special Allowance Benefit........................ $ 2,314.10

Bridging Benefit.......................................... $ 301.89

10The pension plan also provides that certain payments will be deducted from the early retirement benefits:

• Other GM retirement pensions the retiree is receiving (Article I, Section 6);

• Earnings in excess of Canada Pension Plan Yearly Maximum Pensionable Earnings (the “YMPE”) (Article I, Section 9(a) & (d));

• Pension or special allowance payable with regard to any period where weekly sickness and accidental benefits payable from plans to which the Company has contributed (Article V, Section 1(a)(6)); and,

• WSIB benefits for which GM has contributed (other than benefits for loss of a limb or loss of industrial vision) (Article V, Section 1(c)).

11The applicant is currently receiving LOE benefits of $2,278.88 per month and will continue to receive this amount from March 4, 2005 to August 11, 2023, the date the applicant turns 65. This amount does not reflect the annual increase in the applicant’s LOE payments.

12Although these benefits could have been deducted under the pension plan, General Motors had not historically done so.

13On June 30, 2011, General Motors notified its retirees, including the applicant, that it intended to begin enforcing the deduction provisions of the pension plan set out above.

14Following this announcement, the applicant’s union, Unifor Canada (the “Union”), raised the issue as an oral grievance. A draft of the grievance is set out below:

The Union claims a violation of the Master Agreement. We claim that, on behalf of members of CAW (now Unifor) Locals 27, 1973, 636, 222, and 199, after Oct. 1, 2011 General Motors will be unfairly deducting WSIB benefits dollar for dollar against the bridge benefits as negotiated in the CAW/GM Pension Agreement. We claim under estoppel that the situation should remain the status quo for the duration of the current Collective Agreement. We demand the Company cease and desist violating the Collective Agreement and the law. We demand that all affected members be made whole and they be repaid all lost monies, including interest.

15A memorandum of understanding was reached between General Motors and the Union on September 8, 2011, whereby they agreed to delay making the WSIB deductions for most retirees, including the applicant, until after August 1, 2012. The preamble to the agreement confirmed that the Union had notified General Motors of its intention to argue that General Motors was estopped from making the deductions.

16On August 1, 2012, General Motors deducted $2,278.88, the amount of the applicant’s LOE benefits, from his monthly pension cheque. This deduction has continued to the present, and is intended to continue until the applicant reaches 65.

analysis

17The applicant claims the deduction of his WSIB compensation from the early retirement benefits contravenes section 5(1) of the Code. The respondents dispute this assertion and state the deduction is not discriminatory. Before turning to the merits of the applicant’s claim, General Motors seeks a dismissal of the Application under section 45.1 of the Code.

Section 45.1 of the Code

18In deciding whether to dismiss an Application under section 45.1 of the Code, I must determine whether the Application has been appropriately dealt with by another proceeding.

19General Motors submits the settlement between General Motors and the Union is a proceeding for the purposes of section 45.1. It submits further that the substance of the Application was appropriately dealt with in the Memorandum of Understanding dated September 8, 2011 between General Motors and the Union. It argues this settlement provided the applicant with significant benefits namely, that WSIB benefits would not be deducted retroactively and any deduction would be deferred for twelve months.

20The applicant submits the oral grievance is not a “proceeding” within the meaning of section 45.1 of the Code and that if it is a proceeding, it did not deal with the substance of the Application because the only issue raised by the Union was estoppel. The applicant submits the grievance did not raise any human rights issues.

21Even accepting that the oral grievance is a proceeding within the meaning of section 45.1 of the Code, I cannot conclude that the issues raised in the Application were appropriately dealt with in the settlement for the following reasons. There is no claim in the grievance that the deductions from the early retirement benefits are discriminatory. The objection to the deductions was based on a claim of estoppel. In particular, the grievance states that pursuant to the principles of estoppel, the status quo (the non-deduction of benefits) should remain for the duration of the current collective agreement. Although the grievance refers to compliance with the law generally, there is no reference to discrimination, human rights or the Code.

22Similarly, there is no reference to the Code or to discrimination in the Memorandum of Understanding. Again, estoppel is the only issue raised. The terms of settlement mainly flow from the claim of estoppel. General Motors agreed not to make deductions retroactively and to defer making those deductions for twelve months. These terms are not responsive to a claim of discrimination. The fact that the applicant derived some benefit from the settlement as a result of a claim of estoppel being made does not mean that his human rights concerns were appropriately dealt with.

23In the absence of any reference to discrimination, human rights, or the Code in the grievance or in the Memorandum of Understanding, there is simply no basis upon which to conclude that the issues in this Application were appropriately dealt with.

24As such, the request by General Motors to dismiss the Application under section 45.1 of the Code is denied.

Discrimination

25The test for discrimination relied upon by the parties in this case is the test set out by the Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne, 2010, ONCA 593 at para. 90. In that case, the Court held that to establish discrimination, an applicant must prove:

a. He is a member of a group protected by the Code;

b. He was subjected to adverse treatment; and

c. The Code ground was a factor in the alleged adverse treatment.

See also See Peel Law Association v. Pieters, 2013 ONCA 396 at paras. 56-59.

26The applicant bears the legal onus of establishing discrimination on a balance of probabilities, meaning the applicant must prove that it is more probable than not that discrimination has occurred.

Is there adverse treatment on the basis of disability?

27This case involves early retirement benefits provided to an employee who has retired from General Motors before the age of 65 (the “early retiree”). The issue is whether certain deductions from the early retirement benefits provided by General Motors are discriminatory.

28There is no dispute that the purpose of the early retirement benefits is to provide bridging income until the early retiree reaches age 65, when government-funded pensions come into effect.

29The applicant alleges that he experienced adverse treatment when his WSIB benefits were deducted from his early retirement benefits and other early retirees were permitted to keep significant earned income up to $52,500 (the YMPE in 2014) without deduction. The applicant believes the distinction is on the basis of disability because disability income is deducted and non-disability income is not. In making this argument, the applicant compares himself to other early retirees who work post retirement.

30The Union submits the applicant has experienced no adverse treatment when compared with other retirees in his situation. It states that after the deduction of WSIB, the applicant is in the same position as an identically-situated retiree in that his total income is the very same. The Union submits further that employees who choose to obtain employment after their early retirement are differently situated from the applicant because their employment earnings are not obtained from General Motors. The Union states the applicant has chosen not to work after his retirement in the kind of occupations that were identified as suitable in the LMR Program.

31General Motors also disputes the applicant’s claim of adverse treatment because of disability. It argues that only GM-funded benefits are deducted from the early retirement benefits and that income received from third parties is not deducted. General Motors argues that GM-funded benefits are deducted because they provide the supplemental income that the early retirement benefits are intended to provide. General Motors submits the differential treatment is based not on disability, but on the source of the income because only GM-funded benefits are deducted from the early retirement benefits.

32The applicant argues a comparator is not necessary in a discrimination analysis. I agree, but the problem for the applicant is that he himself is relying on a comparator analysis rather than focusing on whether or not there is a disadvantage and whether General Motors is responsible for the disadvantage. The applicant’s claim of discrimination is based on a comparison of his treatment with the treatment of other early retirees who are permitted to keep significant earned income post retirement.

33In my view, the difference in treatment between the applicant and other early retirees who are permitted to retain income is based on the fact that the other retirees work post retirement, either for themselves or for third parties. The employment cannot be with General Motors because if it was, the employee would not be retired. Post-retirement income up to the YMPE is not deducted from the early retirement benefits because it earned income that has nothing to do with General Motors.

34Thus, the distinction between the deduction of WSIB and the non-deduction of earned income is not based on disability: it is based on whether the early retiree is working post retirement. It is well established in our jurisprudence that treating employees differently because they are working is not discriminatory. As stated by the Court of Appeal in Ontario Nurses’ Assn. v. Orillia Soldiers Memorial Hospital, 1999 CanLII 3687 (ON CA), [1999] O.J. No. 44, “It is not prohibited discrimination to distinguish for the purposes of compensation between employees who are providing services to the employer and those who are not”. While the services in this case are provided to a third-party employer, the same principle applies: one can treat employees differently on the basis of whether or not they are providing services (work) without contravening the Code.

35It seems to me that the more appropriate group for the applicant to compare himself to is other early retirees who are not working either because they cannot work or because they choose not to work. This is the argument put forward by the Union. The issue is whether the applicant has experienced adverse treatment in relation to this group.

36In order to determine whether the applicant has experienced adverse treatment in relation to this group, it is necessary to determine the purpose of the benefits deducted from the early retirement benefits. I will begin with WSIB because that is the deduction at issue in this case.

37WSIB is an insurance scheme to compensate workers for their workplace injuries in lieu of their ability to sue their employer. It provides compensation for full or partial loss of earnings, and for non-economic losses due to permanent impairments or physical or functional loss. In terms of loss of earnings compensation, it is exactly that: compensation for the inability to work because of a workplace injury. The Court of Appeal in Lowe v. Lowe, 2006 CanLII 804, held the purpose of WSIB payments is to “replace in whole or in part the income that the person would have earned had he or she been able to work in the normal course” (at para. 17).

38The applicant receives partial loss of earnings benefits from the WSIB. His loss of earnings benefits are based on 85% of the difference between what he earned at General Motors and the income he was deemed able to earn by the LMR program. Thus, the applicant’s WSIB loss of earnings is compensation for that portion of his income that he is unable to earn because of his workplace injury. Simply put, it is compensation for lost income.

39Although there is no evidence regarding the purpose of sickness and accident benefits and GM retirement benefits, I do not think it is controversial to state that their purpose is also to compensate for lost income. Thus, all of the benefits that are deducted have the same purpose: to compensate for lost income. Employees receive these benefits because of their employment with General Motors.

40In looking at the early retirement benefits received by the applicant and the early retirement benefits received by other early retirees at General Motors who do not work, both groups receive the same monthly amount to bridge them to the age of 65, at which point government-funded pensions kick in. The only difference is that the applicant receives some of his compensation from the WSIB.

41Early retirees in receipt of WSIB, sickness and accident or other GM retirement pensions, have a reduced need for bridging income, when compared with other early retirees who are not in receipt of these benefits, because they are already receiving benefits to compensate for lost income.

42In the absence of any difference in the bridging income received by the applicant and other early retirees who choose not to work post retirement, there is no adverse treatment. Without adverse or differential treatment, there is no discrimination.

43The applicant will disagree with this finding and assert there is adverse treatment because he is no longer permitted to keep his WSIB benefits, in addition to his early retirement benefits. In real terms, the applicant has lost $2,278.88 per month, the amount of his WSIB benefits.

44I do not accept this argument. Under the terms of the pension plan, General Motors is able to deduct certain payments from the early retirement benefits. General Motors has not historically done so, possibly because of a different financial climate. The fact that General Motors changed its practice and began making the deductions does not mean that the deductions are, on their face, discriminatory. They are only discriminatory if non-working early retirees in receipt of WSIB are treated differently from other non-working early retirees on the basis of disability. I have found that they are not.

45It is also important to note that before General Motors changed its practice and began to make these deductions, the applicant was advantaged in comparison with other early retirees who were not working. He was able to keep his WSIB benefits and his full early retirement benefits. His real complaint is that this advantage has been taken away. While the Code protects against adverse treatment, it does not protect against the removal of an advantage, the result of which places the applicant in the same position as every other member in his group.

46In the alternative, the applicant argues that the provision allowing retirees to earn significant income post retirement without deduction from the early retirement benefit adversely impacts him because he is unable to earn such income because of his disability.

47There are several difficulties facing the applicant in this regard. One, there is no evidence that the applicant is unable to earn income post retirement. The Agreed Statement of Facts indicates that the applicant is able to work. The WSIB concluded he was able to earn $16,146.00 and his WSIB benefits were reduced by this amount. Although the applicant testified that he felt that he was not a reliable employee because of his disability, there is no medical evidence to support this assertion. Should the applicant choose to work post retirement in the years leading up to his 65^th birthday, his paid income from employment will not be deducted (up to the YMPE maximum).

48Two, the disadvantage experienced by the applicant is not tied to the provisions of the pension plan or to General Motors. It is linked to the applicant’s disability. The fact that the applicant has a limited capacity to work post retirement is not something for which General Motors is responsible. I do not want to appear hard or insensitive in making this finding. I recognize that the applicant has been disadvantaged by a workplace injury. However, employers cannot be held responsible for workplace injuries after an employee retires from the workforce.

49This case comes down to General Motors treating employees differently on the basis of whether they work post retirement or not. This work, by definition, must be with a third party. The non-deduction of earned income post retirement recognizes that third party employment has nothing to do with General Motors.

50I understand that General Motors does involve itself in third-party employment if the amount a retiree earns post retirement exceeds the YMPE. General Motors argues that if a retiree is able to earn income from a third party that exceeds the YMPE, the need for supplemental income to bridge that individual to age 65 is unnecessary and early retirement benefits will be reduced by the amount of income the retiree receives about the YMPE.

51I do not think this answers the question of why General Motors cares about third-party employment post retirement. It seems to me that any earned income, including income below the YMPE, impacts the financial need for supplemental income to bridge the retiree age 65. At the end of the day, I do not know why the pension plan allows General Motors to deduct third-party income after retirement if it reaches a certain level. As there is no assertion that this provision of the pension plan contravenes the Code, this issue is not before me.

52In conclusion, employment income post retirement is treated differently from WSIB compensation under the pension plan because it is for work unrelated to General Motors. The applicant cannot compare retirees not working with retirees working because there is a fundamental difference between the two groups. The more accurate comparator is with other early retirees who do not work. When comparing these two groups, there is no differential treatment because they both receive the same bridging income. While the source of the income may be different, the bridging amount is the same. Although the applicant’s capacity to earn significant income post retirement is reduced, that reduced capacity to work is because of his workplace injury and not because of the actions of General Motors.

53For these reasons, the Application is dismissed.