Court File and Parties
ONSC 7289 Divisional Court File No.: 30/14 Date: 2014-12-17
Ontario Superior Court of Justice Divisional Court
Marrocco A.C.J., Nordheimer and C. Horkins JJ.
Between:
Daniel Gouthro Applicant
– and –
Workplace Safety and Insurance Appeals Tribunal City of Toronto Respondent
-and-
Attorney General of Ontario Intervener
Counsel: Richard A Fink, for the Applicant Chris Paliare and Andrew Lokan, for the Respondent Workplace Safety and Insurance Tribunal Sharmila Clark and Amandi Esonwanne, for the Respondent City of Toronto Robert E. Charney, Matthew Horner and Padraic Ryan, for Intervener Attorney General of Ontario
Heard: December 1, 2014
Reasons for Judgment
Marrocco A.C.J.S.C.
[1] This is an application by Daniel Gouthro for judicial review of Decision No. 512/06 (“Decision”) and Decision No. 512/06R (“Reconsideration Decision”) of the Workplace Safety and Insurance Appeals Tribunal (“Tribunal”) dated November 2, 2011, and December 10, 2013, respectively.
[2] In its Decision, the majority of the Tribunal rejected Daniel Gouthro’s claim that s. 43(1)(c) of the Workplace Safety Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”), which limits to two years the loss of earnings “LOE”) benefits available to workers injured at age 63 or older, discriminates on the basis of age in violation of s. 15(1) of the Canadian Charter of Rights and Freedoms. The majority further held that even if s. 43(1)(c) had violated s. 15(1), it would have been saved by s. 1 of the Charter.
[3] Mr. Gouthro unsuccessfully asked the Tribunal to reconsider its decision due to the fact that there were defects in it and due to the fact that he had new evidence to present.
[4] The applicant seeks:
• A declaration that s. 43(1)(c) is of no force or effect because it contravenes s.15(1) of the Charter;
• An order directing the Workplace Safety and Insurance Board (“WSIB”) to pay loss of earnings benefits to the applicant from the date of his injury until age 71; and,
• Costs.
[5] Mr. Gouthro was employed as a City of Toronto Parks attendant. He began working there in 1988. On February 5, 2001 he fell and hit his head on a locker. He was 63 years old at the time.
[6] Mr. Gouthro suffered cervical and lumbar strains. An adjudicator granted him LOE benefits until he turned 65, the compulsory retirement age in the City of Toronto.
[7] Mr. Gouthro also suffered a compensable back injury in 1982 and was receiving a monthly lifetime pension as a result.
[8] LOE benefits were extended to February 5, 2003, i.e. two full years after Mr. Gouthro was injured, because Mr. Gouthro was able to establish that he would have continued working beyond age 65 if not for the compensable injury.
[9] Section 43(1) provides as follows:
A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of,
(a) the day on which the worker’s loss of earnings ceases;
(b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;
(c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;
(d) the day on which the worker is no longer impaired as a result of the injury.
[10] Section 43(1)(c) provides an exception to the general rule contained in s. 43(1)(b). The general rule provides that LOE benefits terminate at age 65. The exception provides for a maximum of two years LOE benefits for a worker who is 63 or older at the time of the injury. The worker must prove that he or she intended to continue working past age 65. A worker who sustained an injury over the age of 63 years would only be entitled to LOE benefits for the full two years after the injury if he or she continued to suffer a loss of earnings as a result of the injury for a two-year period.
[11] The notice of application makes it clear that the applicant attacks the exception in s. 43(1)(c). At paragraph 29 of his factum, the applicant makes the following statement: “Section 15(1) of the Charter is contravened by section 43(1)(c) of the WSIA because it discriminates against workers on the basis of age, with respect to provision of benefits.”
[12] The applicant unsuccessfully made the same submission before the Tribunal. The Tribunal majority concluded that the general rule that LOE benefits terminate at age 65 with the possibility of a two-year exception was based on the expert evidence tendered that relied on Statistics Canada data from 2008 showing that almost 90% of workers had retired by age 65. The Tribunal majority found that s. 43(1)(c) provided flexibility in LOE benefits to older workers while avoiding the problem of predicting when a worker would have retired. The Tribunal majority found that this approach was necessary to make sure that available benefits were appropriately targeted.
[13] The standard of review with respect to the constitutional question is correctness. Nevertheless, the Tribunal’s conclusions concerning the nature of the statutory scheme with which it is concerned and the balance to be found among competing interests is entitled to deference. In Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 30, the Supreme Court of Canada made the following observation:
…Charter disputes do not take place in a vacuum. They require a thorough understanding of the objectives of the legislative scheme being challenged as well as of the practical constraints it faces and the consequences of proposed constitutional remedies.… In this respect, the factual findings and record compiled by an administrative tribunal, as well as its informed and expert view of the various issues raised by the constitutional challenge, will often be invaluable…
[14] The Tribunal had to determine whether the impugned section discriminated against Mr. Gouthro on the basis of his age. This involved two considerations: first, does s. 43(1)(c) create a distinction based on age; second, if so, does this distinction create a disadvantage by perpetuating prejudice or stereotyping? See R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 17.
[15] This section clearly creates a distinction based on age.
[16] The Attorney General intervened before the Tribunal to defend the validity of s. 43(1)(c) and did so again before this court pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, . c. C. 43. The Attorney General called Mr. Peter Gorham to provide expert actuarial testimony. The majority and minority Tribunals accepted Mr. Gorham’s evidence.
[17] Mr. Gorham testified that, in 2008, 9.8% of the labour force was over the age of 65. Mr. Gorham also testified that since 2003, while there had been a gradual increase in the percentage of the population over 65 who were still in the workforce, the level in 2008 was still very low.
[18] Mr. Gorham also stated that the median income in 2007 of people over the age of 65 who reported income from earnings was $1300 a year. This meant that approximately one half of those persons had an income of less than $1300 and one half earned more than $1300.
[19] It was Mr. Gorham’s opinion that while many Canadians express an interest in working past age 65, as of 2008, the reality was that relatively few of them did.
[20] Mr. Gorham acknowledged that the elimination of mandatory retirement would likely affect people’s decisions about retirement. Significantly, he testified that even if 40% of Canadians over 65 remained in the workforce, this would not indicate that LOE benefits after 65 could be supported by insurance principles or by actuarial practice. In Mr. Gorham’s opinion, the more relevant fact was the level of the median income of those working.
[21] Mr. Gorham testified that almost 90% of the workers injured after the age of 61 return to work within two years. This means that s. 43(1)(c), which replaces lost earnings for up to two years for those workers injured over the age of 63, does not disadvantage 90% of the members of that class.
[22] Section 43(1)(c) does not exist in a vacuum; in any analysis of it some consideration must be given to the fact that s. 43(1)(b) contains a general working age limit of 65 years.
[23] We are dealing here with LOE benefits. We are not dealing with other benefits to which an injured worker is entitled. For example, Mr. Gouthro is receiving a 10% permanent disability award, paid as a monthly lifetime pension, due to the 1982 back injury. He is also receiving a monthly 37% Non-Economic Loss benefit for back and neck injuries. I make this observation solely to demonstrate that the LOE benefit, with which we are concerned, is part of a scheme of benefits available to injured workers and that some benefits are available for life.
[24] Section 43(1)(c) does not deny Mr. Gouthro a benefit provided to other persons. It extends to beyond age 65 the LOE benefit for workers over the age of 63.
[25] The majority found that the Workplace Safety and Insurance Act operated primarily as an insurance scheme. There was a minority view at the Tribunal about the constitutionality of the section with which we are concerned. The minority view characterized the Workplace Safety and Insurance Act as an insurance scheme for employers and a social benefits program for workers.
[26] Only injured workers and their dependents come within the scheme of the Act. Benefits are tied to actual wages earned at the time of injury. This scheme insures workers for actual wage loss and provides other services. It is not a universal disability program.
[27] The scheme is created by an Act of the legislature. The legislature set out its purpose in s. 1 of the Act, which provides as follows:
The purpose of this Act is to accomplish the following in a financially responsible and accountable manner (Emphasis added):
To promote health and safety in workplaces.
To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease.
To facilitate the re-entry into the labour market of workers and spouses of deceased workers.
To provide compensation and other benefits to workers and to the survivors of deceased workers.
[28] “Worker” is a defined term.
[29] I accept the conclusion of the Tribunal majority that the Workplace Safety and Insurance Act creates a workplace insurance plan and not a social benefits scheme. I would simply add that the legislature has mandated that this insurance plan is to be administered in a financially responsible and accountable manner. Applying insurance principles is consistent with the legislative purpose.
[30] The legislation discusses income replacement, permanent impairment awards, rehabilitation services and healthcare measures for injured workers. It is trite to observe that the Act is funded by employers and that in return workers gave up the right to sue. Finally, the legislation does not reference social benefits.
[31] If the Workplace Safety and Insurance Act provided that injured workers were to receive LOE benefits until they died, that would imply that people work until they die. Both intuitively and statistically this seems incorrect.
[32] Professor Weiler, whose report “Reshaping Workers’ Compensation” was referred to with approval in the Tribunal majority decision, observed that a loss of earnings benefit for injured workers cannot be for life, and should be replaced by retirement income benefits at an age reflecting typical retirement.
[33] Mr. Gorham testified that “it would be ideal if the WSIA could be designed to provide compensation to all injured seniors for as long as they would have continued to work in the absence of their injury and for no longer, without any limitation. Practically that cannot be done.” In addition I would observe that such a scheme was not created by the legislature in Ontario. Mr. Gorham also testified that “providing income indemnification where the basis for loss is subjective in nature is not sound insurance or actuarial practice.”
[34] Finally, the second part of the test from Kapp is not made out in this case. Section 43(1)(c) does not create a disadvantage based on a stereotypical attribute. It is grounded in the statistically verifiable facts referred to earlier; namely that as of 2008 approximately 90% of Canadian workers stop working at the age of 65 years and 90% of workers injured after the age of 61 return to work within two years.
[35] Given the evidence of Mr. Gorham, which was accepted by the majority and minority Tribunals, I cannot say that concepts of prejudice or stereotyping are reflected or created by s. 43(1)(c). Therefore, I am satisfied that Tribunal majority was correct in concluding that s. 43(1)(c) did not impose on Mr. Gouthro, either as an individual or as part of a group with a pre-existing disadvantage, prejudice or stereotyping based on age.
[36] Section 43(1)(c) is not discriminatory and therefore is not contrary to s. 15(1) of the Charter of Rights and Freedoms.
[37] If I am wrong, I would conclude, as the Tribunal majority did, that s. 43(1)(c) is saved by s. 1 of the Charter of Rights and Freedoms. The section 1 test requires that, should there be a limitation on rights, that limitation must be justified by (1) a pressing and substantial objective, and (2) proportional means. These means must be rationally connected to the objective, minimally impairing of rights, and reflect proportionality between the infringement and the objective.
[38] The Tribunal majority found that the objective of s. 43(1)(c) of the Workplace Safety and Insurance Act is “to provide injured workers with loss of earnings benefits resulting from a work injury but not past the age workers would likely have retired.” The Tribunal majority description of the purpose of its home statute is entitled to deference.
[39] Providing loss of earnings protection to injured workers is obviously pressing and substantial. The same can be said for providing these benefits in a financially responsible way. If LOE benefits are provided in a financially responsible way, then the scheme for providing those benefits is sustainable in the sense that LOE benefits can be available for the foreseeable future. The benefit is also sustainable because the scheme limits or eliminates excessive financial demands. This is especially pertinent in Ontario because, when this legislation was introduced, the then Minister of Labour noted that workers’ compensation was failing to restore workers to their pre-accident status.
[40] I am satisfied that the objective of s. 43 (1)(c) is pressing and substantial.
[41] Section 43(1)(c) is also rationally connected to its objective because it seeks to pay LOE benefits for wage loss. It seeks to avoid paying LOE benefits to persons who have stopped working and therefore are no longer losing earnings.
[42] We know that, for the time period with which we are concerned, 90% of the workers will likely have retired by age 65 and that 90% of injured workers over the age of 61 will likely have fully recovered within two years. This is sufficient evidence to support a finding that this section minimally impairs injured workers over the age of 65.
[43] In an effort to demonstrate that some form of LOE benefits over the age of 65 was possible, the applicant pointed to British Columbia and Alberta as examples of schemes which operated on that principle. The fact that other provinces have chosen to adopt different schemes is not determinative of the issue before this court. Ontario is entitled to deference when deciding as a matter of policy how best to compensate injured workers for loss of earnings. Diversity is permitted in provincial policies; all provinces do not have to provide identical benefits. See Haig v. Canada, 2 S.C.R. 995, at para. 98.
[44] The appellant called Professor Thomas Klassen who was qualified to offer opinion evidence as an expert. Professor Klassen stated that, due to an aging baby boom generation and a decline in births, people over 65 accounted for 13.7% of the population in 2006. He testified that surveys revealed that those who wish to work past 65 had increased from 15% in 1996 to 26% in 2003. Professor Klassen testified that less than 10% of Canada’s workers face mandatory retirement. It was his view that a flexible retirement policy makes sense for workers and employers and for society as a whole.
[45] It was Mr. Gorham’s opinion that principles of insurance would (in 2008) not permit compensation for loss of earnings after the age of 65 due to the small percentage of people in 2008 who have those earnings and the reduced level of those earnings. The Tribunal majority confined its analysis to “current statistical information” and noted that the status quo might change. As indicated elsewhere, Mr. Gorham’s evidence was accepted by both the Tribunal minority and majority and it constitutes an answer to Professor Klassen’s opinion that those over 65 wishing to work had increased.
[46] Accordingly even if s. 43(1)(c) had offended s. 15 (1) of the Charter, I am satisfied that it would have been saved by s. 1.
[47] The Tribunal’s own decisions on reconsideration reveal that reconsideration of a Tribunal decision is an exceptional result. The applicant's submissions on reconsideration did not challenge the decision's legal approach to the Charter argument, but rather disputed its application to the facts of the appeal. A reconsideration hearing is not an opportunity to reargue the case. The applicant did not suggest there was an error in the Tribunal’s process. The applicant submitted new materials but this evidence was not introduced through an expert who could be cross-examined. Accordingly, the reconsideration decision found that the new materials did not meet the test for submitting new evidence. These new materials were not admitted by the Tribunal and are not therefore admissible on this application.
[48] There is no error in the reconsideration decision.
[49] This application is dismissed. The Respondents are not seeking costs. As a result, there will be no order for costs.
Marrocco A.C.J.S.C.
Nordheimer J.
Horkins J.
ONSC 7289 Divisional Court File No.: 30/14 Date: 2014-12-17
Ontario Superior Court of Justice Divisional Court
Marrocco A.C.J., Nordheimer and C. Horkins JJ.
Between:
Daniel Gouthro Applicant
-and-
Workplace Safety and Insurance Appeals Tribunal City of Toronto Respondent
-and-
Attorney General of Ontario Intervener
Reasons for Judgment
Released: 2014-12-17