Reilly v. Ford Motor Company of Canada Limited, 2016 HRTO 1189

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Reilly

Applicant

-and-

Ford Motor Company of Canada Limited

and The Great West Life Assurance Company

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: September 9, 2016

Citation: 2015 HRTO 1189

Indexed as: Reilly v. Ford Motor Company of Canada Limited

APPEARANCES

Paul Reilly, Applicant

Self-represented

Ford Motor Company of Canada Limited, Respondent

Anna Abbott, Counsel and Carli Gutman, Student-at-law

The Great West Life Assurance Company, Respondent

Susan McCorquodale, Counsel

1This is an Application filed on September 22, 2015 alleging discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). While the Application also alleges discrimination with respect to services and contracts, it is clear that the relevant social area under the Code is employment.

2In brief, the Application raises two issues: (1) that the discontinuance of the applicant’s extended disability benefits effective July 31, 2015 constitutes discrimination because of disability in violation of the Code; and (2) that the deduction of Canada Pension Plan (“CPP”) disability benefits from the applicant’s extended disability benefits also constitutes discrimination because of disability in violation of the Code. While the Application also alleges reprisal, there is no allegation that the applicant sought to claim or enforce his Code rights prior to the filing of the Application, and thus there is no proper foundation to support any reprisal allegation.

3By Case Assessment Direction (“CAD”) dated June 8, 2016, the Tribunal granted the Request for Summary Hearing filed by the respondent Ford Motor Company of Canada Limited (“Ford Canada”). The summary hearing in this matter proceeded by teleconference on August 8, 2016, at which time I heard oral submissions from the parties. I also have considered all material filed with the Tribunal for the purpose of the summary hearing.

Background

4The applicant is employed by Ford Canada at its assembly facility in Oakville. He is a member of a union, Unifor, Local 707, and Ford Canada and the union are parties to a collective agreement.

5The respondent The Great West Life Assurance Company (“GWL”) is an insurance company which administers, assesses and adjudicates payment of disability benefits under Ford Canada’s self-funded disability plan, pursuant to an administrative services only agreement.

6In May 2013, the applicant applied for accident and sickness disability benefits under the Ford Canada disability plan. The applicant’s claim was adjudicated by GWL, and he was determined to be eligible for these benefits for the maximum 52 week period.

7Effective June 3, 2014, the applicant was approved for extended disability benefits. As the applicant was also in receipt of CPP disability benefits, his extended disability benefits were reduced accordingly, pursuant to the provisions of the Ford Canada disability plan.

8By letter dated June 24, 2015, GWL advised the applicant that, after reviewing all of the medical documentation he had submitted in support of his continued eligibility for extended disability benefits, the medical documentation no longer supported that he was totally disabled. As a result, the applicant was advised that his extended disability benefits would be terminated effective July 31, 2015.

9Since that time, the applicant’s claim was reviewed by GWL. By letter dated December 17, 2015, the applicant was advised that his extended disability benefits had been reinstated retroactively to August 1, 2015 and would continue until December 31, 2015. On December 31, 2015, the applicant was advised that his extended disability benefits would continue until March 31, 2016. On April 15, 2016, the applicant was further advised that based on the fact that his condition had not changed, his extended disability benefits would be ongoing. The deduction of CPP disability benefits from the applicant’s extended disability benefits under the Ford Canada disability plan has continued throughout.

Reasonable prospect of success

10The issue for determination at a summary hearing is whether this 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.

11Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

12Details 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.

13Accordingly, I will address each of the issues raised in the Application and assess whether there is no reasonable prospect that the Application will succeed.

Allegation re denial of extended disability benefits

14As stated above, one of the issues raised by this Application relates to the decision to discontinue the applicant’s extended disability benefits as of July 31, 2015, although these benefits subsequently were reinstated retroactively to August 1, 2015 and are ongoing.

15As stated by this Tribunal in Matthews v. Chrysler Canada Inc., 2011 HRTO 1939 at para. 18:

… the application of benefits plans necessarily involves decisions regarding eligibility for benefits, which will often be related to a claimant’s disability. The fact that a claimant has a disability related to his claim does not make an administrator’s decision to deny benefits or seek additional medical information discriminatory. Neither does the Tribunal have jurisdiction to determine whether decisions made under a benefit plan are correct. The Tribunal recently summarized the limits of its jurisdiction regarding benefits plan in Zaki v. Ontario (Community and Social Services) 2011 HRTO 1797, as follows:

Many types of benefits depend on the nature and extent of a person’s disability, and those administering such programs must make decisions about whether a person qualifies and the extent of benefits they will receive. Such decisions will often be connected with the person’s disability and be based on the nature and extent of that disability. Examples include payments by government, such as Workplace Safety and Insurance Board or Ontario Disability Support Program (“ODSP”) Benefits, and programs provided by private service providers, such as long-term disability and health benefits. In my view, the prohibition against discrimination because of disability in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) does not give this Tribunal the power to review decisions under disability-based benefit programs to determine whether they are correct under the legislation, regulations, or policies governing the program; this would be giving an appeal function to the Tribunal that the Legislature did not intend. Of course, as the Tribunal has recognized in other cases, discrimination in government and other benefit programs may be found in other ways such as policies, systemic practices, or considerations based on prohibited grounds irrelevant to the decision being made.

16In the instant case, the allegation raised in the Application relates to a decision made by GWL as the administrator of the Ford Canada disability plan that the medical documentation submitted by the applicant did not support continued eligibility for benefits. This decision was subsequently reversed on review and benefits reinstated. While I appreciate the applicant’s position that it was unfair to him for his extended disability benefits to have been interrupted for a four and a half month period and his assertion that his doctor did not tell GWL anything different to cause his benefits to be reinstated, that is not a basis to support an allegation of discrimination because of disability in violation of the Code. Rather, that is a challenge to the correctness of GWL’s decision that the medical documentation did not support continued eligibility for extended disability benefits, which has been determined not to be within this Tribunal’s jurisdiction.

17In his oral submissions at the summary hearing, the applicant alleged that in discontinuing his benefits, the respondents discriminated against him because of the specific nature of his disability, namely a mental health condition, and alleged that his benefits would not have been discontinued if he had a physical disability. The applicant was not able to point to any specific support or basis for this assertion, apart from his own speculation that this was the reason that GWL did not accept the medical documentation he had initially provided. In my view, this represents a bare allegation that is unsupported by any specific basis in the material before me, and is thereby insufficient to establish a reasonable prospect of success on this issue: see Visic v. Law Society of Upper Canada, 2012 HRTO 1642; Caster v. Hearthstone Communities Services Ltd., 2013 HRTO 111; Corpus v. Toronto Police Service, 2013 HRTO 1141.

18Accordingly, I find that this part of the Application does not have any reasonable prospect of success, and the Application is dismissed in part to that extent.

Allegation re deduction of CPP disability benefits

19The second issue raised in the Application relates to the deduction of CPP disability benefits from the applicant’s extended disability benefits under the Ford Canada disability plan. As noted above, the facts are not largely in dispute for the purposes of the summary hearing. Rather the issue of whether there is no reasonable prospect of success must be considered in the context of the applicant’s personal circumstances, the terms of the policy administered on behalf of Ford Canada by GWL and the provisions of the CPP.

20I am unable to find that this part of the Application has no reasonable prospect of success. The Tribunal Rules of Procedure does not require reasons for this finding. In allowing this to proceed, I express no view on the merits of the Application or any potential defences. Rather, because this is an issue of first instance for the Tribunal, I wish to briefly set out what may be the issue to be determined at a hearing before the Tribunal.

21Authorization for the deduction of CPP disability benefits from extended disability benefits is based upon Appendix “R” to the collective agreement between Ford Canada and the union, and in particular as a result of para. 13(b) of the section dealing with Group Life and Disability Insurance.

22In the instant case, the issue arises as to whether the deduction of CPP disability benefits from the extended disability benefits to which an employee is entitled under the Ford Canada disability plan distinguishes adversely between two different types or categories of disability: see Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566.

23There is no dispute that under the terms of the Ford Canada disability plan, an employee is eligible for extended disability benefits if they are determined to be “totally disabled” following the expiration of their accident and sickness disability benefits. In order to be determined to be “totally disabled” within the meaning of the Ford Canada disability plan, an employee must either: (1) be unable to engage in any gainful occupation or employment for which he/she is reasonably qualified by education, training or experience; or (2) not be engaged in regular occupation or employment for remuneration or profit and be prevented by bodily injury or disease from engaging in any regular occupation or employment with the company at the plant or plants where he/she has seniority.

24Pursuant to the Canada Pension Plan, RSC 1985, c C-8, a person who is “disabled” and meets the requirements set out in s. 44(1)(b) of that Act is entitled to be paid a disability pension (otherwise referred to in this Interim Decision as “CPP disability benefits”). Pursuant to s. 42(2) of that Act, a person shall be considered to be “disabled” only if he or she is determined to have a “severe and prolonged mental or physical disability”. Under that provision, a disability is considered “severe” only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and a disability is considered “prolonged” only if it is determined that the disability is likely to be long continued and of indefinite duration or is likely to result in death.

25This raises the issue as to whether the provision in the Ford Canada disability plan authorizing the deduction of CPP disability benefits from extended disability benefits creates a distinction between two types or categories of disability, namely: (1) those employees who are “totally disabled” within the meaning of the Ford Canada disability plan, but whose disability is not “severe and prolonged” within the meaning of the Canada Pension Plan; and (2) those employees who are “totally disabled” within the meaning of the Ford Canada disability plan, and whose disability is “severe and prolonged” within the meaning of the Canada Pension Plan.

26The definition of “totally disabled” under the Ford Canada disability plan may not be co-extensive with the definition of “disabled” under the Canada Pension Plan. For instance, an employee may be unable to engage in any gainful employment, but such inability may not be “prolonged” in the sense that it is likely to be long continued and of indefinite duration or is likely to result in death. The definition of “disabled” under the Canada Pension Plan may create a higher standard or threshold for eligibility than the definition of “totally disabled” under the Ford Canada disability plan, such that persons who are determined to be eligible for CPP disability benefits could be regarded as falling within a category of persons whose disability is more serious, in the sense that it is more severe and prolonged, than those persons who are determined “totally disabled” under the Ford Canada disability plan but whose disability is not sufficiently severe and prolonged to qualify for CPP disability benefits. That is a matter that, in my view, would be appropriately determined at the hearing on the merits.

27The next issue for the purposes of the summary hearing that arises is whether there is any evidence that the deduction of CPP disability benefits from extended health benefits under the Ford Canada disability plan has an adverse impact or effect on persons with more serious, or severe and prolonged, disabilities. It is not disputed that under the terms of the Ford Canada disability plan, the amount of CPP disability benefits is merely deducted from an eligible employee’s extended disability benefits, such that the total amount of monies received by persons approved for extended disability benefits remains the same. It is also not disputed that persons with what may be regarded as more serious disabilities who qualify for CPP disability benefits simply receive two cheques, one from CPP and one from Ford Canada or GWL on Ford Canada’s behalf, but the total amount of monies received is the same as the extended disability benefits payable under the Ford Canada disability plan to an employee with a less serious disability who is not eligible for CPP disability benefits.

28However, the question arises as to whether, and the extent to which, these two benefits should be considered to be the same. As stated by the Supreme Court of Canada in Battlefords and District Co-operative Ltd. v. Gibbs, above, the purpose of a disability plan of this nature is to “insure employees against the income-related consequences of becoming disabled and unable to work” and to provide “income replacement for employees in the event of disability”: see para. 34. CPP disability benefits, on the other hand, are a statutory benefit that an employee has paid for through her or his CPP contributions made while working. CPP disability benefits have been determined not to be payments for loss of income, given that a person does not need to be presently employed in order to be eligible for such benefits, and have been determined to be akin to a private policy of insurance, for which the recipient has provided consideration by her or his contributions to the Canada Pension Plan: see Cugliari v. White, 1998 CanLII 5505 (Ont.C.A.).

29Thus, the issue arises as to whether employees with more serious disabilities are adversely impacted or effected as a result of the reduction of an income replacement benefit, such as the extended disability benefit under the Ford Canada disability plan, due to their receipt of a statutory benefit which is not a loss of income benefit and for which they have paid through their own CPP contributions.

30In my view, the questions that arise in this proceeding raise a serious and significant issue of first instance which is not properly determined through this Tribunal’s summary hearing process, and which properly should be determined on the basis of a full evidentiary record at a hearing on the merits.

31In these circumstances, I find that I cannot say that the issue of the deduction of CPP disability benefits from the applicant’s extended disability benefits has no reasonable prospect of success at this stage of the proceeding. As a result, this issue is not dismissed and will proceed to a full hearing.

Status of GWL as respondent

32At the summary hearing, I specifically invited submissions as to whether the Application has a reasonable prospect of success as against the respondent GWL. As noted above, the Ford Canada disability plan is a self-funded plan. It is not a policy or contract of insurance between Ford Canada and GWL, and GWL is not a party to the terms and provisions of the self-funded plan. GWL’s involvement in this matter relates to the adjudication and administration of benefits provided under the Ford Canada disability plan pursuant to an administrative services only agreement.

33The only remaining issue that is proceeding in this matter relates to an allegation that a specific provision of the Ford Canada disability plan authorizing the deduction of CPP disability benefits from extended disability benefits is discriminatory. Given that GWL is not a party to the Ford Canada disability plan, it is my view that there is no reasonable prospect of success in holding GWL responsible, even if this provision of the disability plan is found to be discriminatory. This is not a case, for example, where the impugned provision forms part of a policy or contract of insurance to which GWL is a party. Further, this also is not a case where it is alleged that GWL’s own actions in relation to the adjudication or administration of the disability plan are at issue, such as in Sharma v. The Regional Municipality of Waterloo Police Services Board, 2015 HRTO 1678 at paras. 59 to 76. Rather, in the instant case, GWL was merely applying an existing provision in the Ford Canada disability plan.

34In these circumstances, I find that the Application has no reasonable prospect of success as against GWL in relation to the one remaining issue in this proceeding. Accordingly, the Application is dismissed as against GWL in its entirety.

35Having said that, I already have noted above that the remaining issue in this proceeding raises a serious and significant issue that does not yet appear to have been determined, and which potentially has wide-ranging implications for employers and insurance providers. In these circumstances, the Tribunal may benefit from the continued involvement of GWL in this matter or some other organization more widely representing the interests of the insurance industry or the employer community, in order to provide this Tribunal with a broader perspective on the issue. Any involvement of this nature would need to come by way of a Request to Intervene by either GWL or some other organization more widely representing the interests of the insurance industry or the employer community.

36By the same token, I note that the applicant is self-represented in this matter. It may benefit the Tribunal in addressing the issue raised in this proceeding if the applicant were to retain legal counsel, either privately or through the Human Rights Legal Support Centre (contact information for the Centre is provided on the initial pages of the Tribunal’s Application form). In addition, the Tribunal may benefit from the involvement in this matter of other organizations that may have an interest in the issue, such as the Ontario Human Rights Commission or the Advocacy Resource Centre for Persons with Disabilities (“ARCH”). Once again, any involvement by such organizations would need to be initiated by a Request to Intervene.

Next steps

37I am aware that the hearing on the merits in this matter is currently scheduled to proceed on November 3 and 4, 2016. By e-mail correspondence dated July 28, 2016, the parties’ pre-hearing obligations pursuant to Rules 16 and 17 were suspended pending the result of the summary hearing.

38Given that this matter is proceeding on the one remaining issue, the hearing to address this issue will proceed as scheduled on November 3 and 4, 2016.

39The parties are directed to comply with Rule 16.1 by disclosing to each other all arguably relevant documents in their possession by no later than September 30, 2016.

40The parties thereafter are directed to comply with Rules 16.2, 16.3 and 17 by serving and filing the documents upon which they intend to rely at the hearing, a list of witnesses, a summary of each witness’ expected evidence, and any expert reports or summaries of evidence by no later than October 14, 2016.

ORDER

41For all of the foregoing reasons, I hereby make the following order:

a. The allegation raised in the Application regarding the deduction of CPP disability benefits from the applicant’s extended disability benefits under the Ford Canada disability plan will proceed to a full hearing;

b. The remainder of the Application is dismissed as having no reasonable prospect of success;

c. The Application is dismissed in its entirety as against The Great West Life Assurance Company as having no reasonable prospect of success;

d. By no later than September 30, 2016, the parties shall comply with Rule 16.1 by disclosing to each other all arguably relevant documents in their possession; and

e. By no later than October 14, 2016, the parties shall comply with Rules 16.2, 16.3 and 17 by serving and filing the documents upon which they intend to rely at the hearing, a list of witnesses, a summary of each witness’ expected evidence, and any expert reports or summaries of evidence.

42I am not seized.