2008 CanLII 82401

THE WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20090001

OBJECTION BY: Worker

EMPLOYER: Not Participating

REPRESENTATIVES: Worker

HEARING DATE: June 6, 2008

ATTENDEES: Worker, Worker Representative, Observer

ISSUE

The worker argues that s.43(1)(c) of the Workplace Safety and Insurance Act (WSIA) violates s.15(1) of the Canadian Charter of Rights and Freedoms (Charter) and therefore ought to be disregarded in adjudicating entitlement to loss of earnings (LOE) benefits in the claim of the above named worker.

Based on the above, the worker requests entitlement to LOE benefits beyond October 21, 2005 to date and continuing.

A merit review related to the worker’s request for the payment of LOE benefits beyond the date they were paid pursuant to s.43(1)(c), was conducted, and the worker’s substantive appeal was denied in a decision dated December 13, 2007.

Subsequent to the denial of the appeal on its merits, the worker initiated the constitutional challenge. The procedural requirements arising out of s.109 of the Courts of Justice Act, that a notice of constitutional question be forwarded to the federal and provincial attorneys general, has been met in this case.

HOW THE ISSUE ARISES

On October 21, 2003, at age 67, while employed as an electrician with the employer, the worker fell more than 8 feet while performing work. The worker landed on a meat cooler on his left side.

The initial diagnoses were fractured ribs, contusions, and a pleural effusion.

The worker was granted full loss of earnings (LOE) benefits from October 22, 2003 until October 21, 2005. Benefits were finaled as of the latter date because the worker was 67 years of age at the time of the work-related accident and the WSIA states that payments continue to the earliest of:

• Two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury.

The worker is currently in receipt of a 33 percent non-economic loss (NEL) award to account for his organic permanent impairments related to the low back and right femoral neuropathy, and psychotraumatic disability as well.

A December 13, 2007 merit review decision denied the worker’s appeal and this decision will address the constitutional challenge to s.43(1)(c).

EXHIBITS: 1) Package of materials including relevant case law and excerpts from a variety of public documents:

• Outline of Charter Argument
• Excerpts from Workplace Safety and Insurance Act, 1997 and Constitution Act, 1982
• Nova Scotia (Workers’ Compensation Board) v. Martin 2003 SCC 54, [2003] 2 SCR 504 (“Martin”)
• Discrimination Compared to What? Choosing a Comparator in an Age Discrimination Case, Discussion Paper presented at 2008 Ontario Bar Association Conference, by Teresa A. Gianfelice, Office of the Worker Advisor
• Decision 794/97, Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”)
• Laronde v. New Brunswick (Workplace Health Safety and Compensation Commission) [2007] NBCA 10 (“Laronde”)
• Tetreault-Gadoury v. Canada (Employment and Immigration Commission) 1991 CanLII 12 (SCC), [1991] 2 SCR 22 (“Tetreault”)
• Summary Report – Failing the Homeless: Barriers in the Ontario Disability Support Program for Homeless People with Disabilities, Undated, Street Health
• Permanent Partial Disability: Alternative Models for Compensation, Paul C. Weiler, December, 1986 (Excerpts)
• Ending Mandatory Retirement: What it Means to You, Ontario Ministry of Labour Backgrounder Document, October 19, 2005
• Zaretski v. Saskatchewan (Workers’ Compensation Board) [1997], Saskatchewan Court of Queen’s Bench

AUTHORITY

Section 43(1)(c) of the Workplace Safety and Insurance Act (WSIA)

Section 118(1) of the Workplace Safety and Insurance Act (WSIA)

18-03-02 “Payment of LOE Benefits”

18-03-03 “Reviewing LOE Benefits (Prior to Final Review)”

18-03-04 “Older Workers and LOE Benefits”

Section 15(1) of the Canadian Charter of Rights and Freedoms (Charter)

Section 1 of the Canadian Charter of Rights and Freedoms (Charter)

Section 52(1) of the Canadian Charter of Rights and Freedoms (Charter)

ADDITIONAL CASE LAW REVIEWED

Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC) [1999] 1 S.C.R. 497 (“Law”)

Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 (“Gosselin”)

ASSESSMENT OF THE EVIDENCE

Worker Testimony

The worker testified and provided the following information. He was born in South Africa in 1936 and started his apprenticeship as an electrician at the age of 16. He came to Canada in 1958 or 1959 and had to do some upgrading to become licensed in Ontario.

When he became licensed, he performed work on commercial, industrial and residential jobs. In 1975, he attained his Master’s license and then owned his own business from 1975 until 1999. He closed down the business in 1999 due to a lack of business.

In 1999, he was 63 years old. He continued to work for a few companies, on a full-time basis. He obtained the jobs by applying to advertisements in the newspaper. Employers that he worked for did not question his age.

He continued to work after he turned 65 in 2001. He felt he had to continue working as he did not have much money at that time. He planned to continue working until he was no longer able.

He suffered his work-related accident in October, 2003, when he was 67 years old. He was working in a part-time job working 20 hours a week but the employer had suggested the job might become full-time in the future.

His injuries were serious and by 2005 he had to accept he would no longer be able to work as an electrician. He does not believe he is currently capable of working at all. He saw a psychologist recently and tried to climb a 6 foot ladder. He became very nervous.

The worker was asked about his view of the law that led to the closure of his LOE benefits in October, 2005. He suggested it is demeaning, and then went on to state he has lost his quality of life because he is not able to do what he used to do.

The Charter Argument

The worker representative confirmed the issue to be a challenge to the constitutional validity of s.43(1)(c) of the WSIA, suggested the Appeals Resolution Officer’s (ARO) jurisdiction is solely related to this worker’s case and argued the remedy is for s.43(1)(c) to be disregarded in the adjudication of this worker’s claim.

The representative made clear this case does not address the section of the Act that confirms the termination of benefits at age 65.

Relevant Statutory Provisions

The representative began with a review of statutory provisions relevant to the case. He referenced s.52(1) of the Constitution Act, 1982, which describes the Charter as the supreme law of Canada and indicates that any law that is inconsistent with the Charter has no effect to the extent of inconsistency. As well, he commented on the section of the Charter that is relevant to this case, s.15(1), which outlines that every individual is entitled to equal benefit of the law without discrimination based on a number of enumerated grounds, including age.

Jurisdiction to apply Charter

The worker representative addressed the question of the jurisdiction of the Workplace Safety and Insurance Board (WSIB) to apply the Charter. He argued s.118(1) of the WSIA gives the WSIB the jurisdiction to “decide all matters and questions arising under this Act”, except where the Act provides otherwise. He outlined his position the WSIB has explicit jurisdiction to decide questions of law and fact.

He posited as well that the Supreme Court of Canada (SCC) decision in Martin, clearly established the jurisdiction of administrative tribunals such as the WSIB to apply the Charter, and pointed to paragraphs 39 and 40 in that decision.

He also referenced WSIAT Decision 794/97. He noted the Tribunal relied on Martin to conclude they have jurisdiction to decide questions of law arising under the legislation. He commented as well that this determination was made pursuant to a time period where the WSIA did not contain s.118(1) and therefore the Tribunal had less apparent statutory authority than is in existence today.

Application of s.15 of the Charter

The representative referenced the three pronged approach to the application of s.15, as established in Martin and provided arguments specific to this case, under all three.

1. Differential Treatment

The first component of the analysis surrounds the concept of differential treatment.

The representative noted it involves identifying the personal characteristics of the group claiming discrimination, and then comparing the treatment of that group to the most relevant comparator group.

The representative suggested the group claiming discrimination is injured workers receiving LOE benefits who were injured after the age of 63. He argued as well that the most logical group to choose for the comparator group is injured workers receiving LOE benefits who were injured before they turned 63 years of age. He submitted this was the most appropriate choice of comparator group because they are identical in all respects except for their age, which is the enumerated ground.

On the question of the choice of a comparator group, the worker representative addressed a case coming out of the New Brunswick Court of Appeal (NBCA), which dealt with a Charter claim made against the New Brunswick Workplace Health, Safety and Compensation Commission (“Laronde”). The statutory provision challenged is the one which ends the payment of LOE benefits to workers who turn 65. The case is not on point with the one at issue in this decision, but it is relevant to the analysis as it relates to the question of the most relevant comparator group, as well as the characteristics of the group claiming discrimination. The court in Laronde compared individuals over 65 years of age, with individuals under 65 years of age.

He argued the logic of Laronde was incorrect, and referenced a discussion paper written by someone from the Office of the Worker Advisor, a paper which was presented at a 2008 Ontario Bar Association conference on workers’ compensation. The paper analyzed the Laronde decision and came to the same conclusion. He argued, as did the individual noted above in her paper, that it is important to choose the correct comparator group, and that the court in Laronde might have come to a different conclusion if they had instead chosen “disabled workers” under and over the age of 65 as the groups to be compared.

The representative argued that in comparing the treatment between the group claiming discrimination and the comparator group, it is clear there is differential treatment between the two. He provided the example that a worker injured at age 25 could receive LOE benefits for 40 years, but that a worker injured at age 63 could only receive LOE benefits for 2 years, no matter what the circumstances of his injury were.

2. Basis for Differential Treatment – Enumerated or Analogous Ground

The worker representative argued it is then necessary to determine if the differential treatment is based on a ground enumerated in s.15(1). He noted that age is set out in the legislation and that is the basis for the differential treatment, and therefore this threshold is met.

3. Substantive Discrimination

The argument under this component of the three pronged approach is that the differential treatment (distinction) has the effect of unfairly withholding benefits available to others in a manner that demeans the essential human dignity of the group.

The worker representative outlined there are a number of questions to be asked within this factor and argued the questions are all answered in this case in favour of a finding of unconstitutionality.

The first question is whether there are pre-existing disadvantages/stereotypes that are reflected in the challenged legislation. He argued there is clear pre-existing stereotyping of older people, and noted this has been well accepted in a number of SCC cases, including Tetreault, and is also reflected in the recent changes to the Ontario Human Rights Code regarding mandatory retirement.

He noted the pre-existing stereotype at issue is that older people cannot and do not wish to participate in the active workforce.

The second question is whether there is correspondence between the needs of the group claiming discrimination and the way they are treated within the challenged legislation.

The worker representative argued there is no correspondence between the needs of the group (workers under the Act injured after 63) and their treatment under the legislation, indeed just the opposite is true, as the legislation establishes the automatic termination of benefits for these workers.

In answering the question of whether the separate regime for injured workers injured over the age of 63 takes into consideration the special needs of the group in a manner that respects their value as human beings and members of Canadian society, the representative suggested the answer is clear. He recognized there are times when a distinction can be made that respects the needs of a group and has a positive purpose. However, he argued that in this case, the distinction deprives workers of their status as injured workers and has no regard for the personal skills and situation of individual workers. All injured workers injured after the age of 63 are treated as belonging to a group of people who would not remain part of the active workforce, could not be retrained for the labour market, and are not worthy of compensation for their loss of earnings but must instead become the responsibility of governmental social programs.

The worker representative argued the legislation essentially disregards the special needs of workers beyond the age of 63.

The representative argued the analysis used by the SCC in Tetreault is applicable to this worker’s case and is summarized in paragraph 35 of the decision:

There can be no doubt that if mandatory retirement provisions violate s.15(1), then the denial of unemploymentbenefits to those over age 65 must violate s.15(1) as well... both policies make a distinction based upon the same “personal characteristic” attributed to an individual simply because he belongs to the same group of people –namely, that because the individual is over the age of 65, he no longer forms part of the active working population.

The worker representative argued that if the SCC found that mandatory retirement offended the Charter, and flowing from that the denial of employment insurance benefits to workers over 65 offended the Charter, then it logically flowed that the automatic termination of LOE benefits to workers must also offend the Charter.

The third question surrounds the overall purpose of the legislative scheme. The representative noted the historical trade-off between employer and workers that resulted in the establishment of the scheme; employers are protected against being sued by workers for work-related injuries and workers are guaranteed reasonable compensation for their injuries without the delays, costs and uncertainties associated with law suits.

He suggested this statutory provision maintains the employer protection against law suits but the provision excludes compensation for loss of earnings after two years, at which time employers are also exempt from their duty of re-employment and accommodation.

He argued this fact cannot be consistent with the purpose of the WSIA or with the essential human dignity of these workers.

The worker representative noted that the Martin case dealt with this issue, and commented on the fact that employers are protected from law suits while workers are denied entitlement after 4 weeks (in cases of chronic pain disability).

Another consideration is whether the purpose of the limitation is to provide a greater benefit to a more deserving group. The representative argued this consideration is not relevant as there is clearly no ameliorative purpose for this statutory provision.

The last consideration involves answering the question of whether the interest affected goes beyond economic loss and amounts to a loss of human dignity. The worker representative quoted Martin on this issue:

In many circumstances, economic deprivation itself may lead to a loss of dignity.

He submitted that in the context of Martin and Tetreault, legislation that provides economic benefits and then ensures the complete loss of those benefits, amounts to economic deprivation that is sufficient to amount to a loss of human dignity. He agreed that a smaller economic benefit might not reach that threshold, but argued the complete loss of LOE benefits does so.

In support of this supposition on the loss of human dignity, the worker representative relied on an undated report by an organization called Street Health, entitled Failing the Homeless: Barriers in the Ontario Disability Support Program for Homeless People with Disabilities. The report commented on the significant percentage of disabled individuals who were on, but then were unable to maintain, ongoing benefits. He argued there are circumstances when disabled individuals who were on workers’ compensation benefits spiral into abject poverty and homelessness and this could clearly lead to a loss of human dignity.

Application of Section 1 of the Charter

The worker representative noted the question on this issue surrounds whether the limitation can be justified by other considerations, in the context of a free and democratic society. He noted that this is generally addressed by the position taken by the government in defending the statute. He recognized that as a decision-maker, s.1 cannot be ignored, but also suggested the government has chosen not to participate and has lost their initial opportunity to defend the statute. He recognized, that in an enquiry process, I have the authority to search for additional information to pursue the strains of argument in relation to the purpose of the statutory provision, but believed there would not be much to be found beyond the comments made in the 1986 Weiler Report.

He addressed some of the questions that would arise in a s.1 analysis. He provided an excerpt from the 1986 Weiler Report on alternative modes of compensation. It was Bill 162, made effective in 1990, that first provided a section that restricted entitlement based on age. He recognized the Weiler Report comments on the belief that the majority of non-disabled workers retire at age 65 and support themselves on retirement pensions. The objective then is to avoid paying compensation for LOE benefits to people at a time they would have withdrawn from the workforce even if they had not been injured.

The s.1 analysis as established by the SCC in Tetreault asks whether the measures chosen are rationally connected to the objective, whether they impair the Charter right as little as possible, and whether the measures so severely infringe upon the right that this infringement outweighs the legislature’s objective.

The worker representative argued the restriction against paying benefits beyond two years for any worker injured after the age of 63, is not proportional to the goal of paying benefits at a point when most people would be retired. He noted the statutory provision allows for no fine tuning and therefore is not a minimal restraint.

He argued that if the approach taken in the legislation was ever appropriate (in 1990), it certainly is not now, in a society where the Ontario Human Rights Code (OHRC) has been amended to prohibit forced retirement. He suggested the termination of benefits in and around 65 is not rationally connected to the current view of retirement, based on the OHRC change.

He recognized the statutory provision cannot be challenged under the OHRC, but noted this exclusion has no impact on the review under the Charter.

He argued it is no longer reasonable to accept the general approach to retirement at age 65.

The worker representative submitted the purpose of the WSIA, that is to provide compensation and other benefits to workers injured in the course of their employment, is not furthered by the denial of benefits to workers beyond two years when they were 63 at the time of the injury, and is not dealt with by other legislation. He suggested that in this case, the worker had continued to work after the age of 65 as he did not have sufficient money to retire, and so in this case, the WSIB is denying benefits to someone who needed it most, as this worker needed to keep working.

On the question of whether the restraint is as minimal as possible, the worker representative argued there are other ways to deal with this matter, in a way that addresses the individual circumstances for what a reasonable working life is. He noted it is the blanket termination that is the problem, and argued this problem has been solved by British Columbia, under s.23 of their workers’ compensation legislation. The legislation comments on the age of 65 but then sets out as well:

If the Board is satisfied that the worker would retire after reaching 65 years of age, the date the worker would retire, as determined by the Board…

He noted the British Columbia legislation allows me to find there was no reasonable justification because there are other ways to address the issue.

The worker representative argued that in disregarding s.43(1)(c) based on a finding the section violates s.15(1) of the Charter, the worker’s LOE benefits should be re-established effective October 22, 2005 to date and continuing, until his injury no longer affects his earnings capacity.

Analysis

Applicable Legislation

It is important to begin the analysis by recalling the statutory provision at issue in this case. S.43(1)(c) of the WSIA outlines workers who have a loss of earnings as a result of the injury are entitled to payments under the section when the loss of earnings begins.

The payments continue until the earliest of: two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury.

Jurisdiction to apply the Charter

I have reviewed the evidence relied on by the representative on the jurisdictional issue, that being S.118(1) of the WSIA, the Martin decision by the Supreme Court of Canada and WSIAT decision 794/97, and find that it is currently well established in law that the WSIB has jurisdiction to determine Charter challenges to its enabling legislation, and in this case a challenge to the constitutional validity of s.43(1)(c) of the WSIA.

Therefore, as a decision-maker in the Appeals Branch at the WSIB, I have jurisdiction to address this issue.

Application of Section 15 of the Charter

Section 15(1) of the Charter, specifies:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular,without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The case law has clearly established a three part test associated with the application of s.15 of the Charter. As argued by the representative, the test requires the following inquiry: 1) Was there differential treatment? 2) Was the differential treatment based on an enumerated or analogous ground? and 3) Did it result in substantive discrimination? I will address each component of the test.

Differential Treatment

When considering the question of whether the statutory provision at issue leads to differential treatment for a group claiming discrimination and disadvantage, the core of the analysis is a comparison to others who would not be so disadvantaged.

Therefore, it is necessary to establish both the group claiming discrimination as well as the group they should be compared to, known as the comparator group.

It is clear in this case that the group claiming discrimination is injured workers receiving LOE benefits who were injured after they turned 63 years of age. What is less certain is the most appropriate choice of comparator group. On this question, it is worthwhile to canvas a number of court cases that discussed the concept of comparator group.

The SCC has considered this issue extensively in both Hodge and Auton, but this decision will focus on Hodge as it established a number of principles that the court in Auton subsequently approved. At paragraphs 23, 25, 26, and 31 in Hodge, the highest court suggested the comparator group should mirror the characteristics of the claimant group relevant to the benefit or advantage sought, except for the personal characteristic regarding the enumerated or analogous ground raised as the basis for the discrimination, and the comparator must align with both the benefit and the universe of people potentially entitled to it and the alleged ground of discrimination. It is also necessary to identify the purpose of the legislative provision.

In considering the notion of comparator group in the context of the Hodge tenets, I find it helpful to review the decisions made in the Martin case about the choice of comparator group and by the New Brunswick Court of Appeal in Laronde.

Both cases are quite similar on the facts. In Martin, the group alleging discrimination, work-related chronic pain sufferers, chose as a comparator group chronic pain sufferers whose injuries were not work-related. The court concluded there was no proper alignment between the two because benefits under the workers’ compensation scheme were not available to people who had suffered their injuries outside of the workplace. The SCC instead chose as the comparator group, the group of workers subject to the legislation who do not have chronic pain and who are eligible for compensation for their work-related injuries.

In Laronde, the NBCA considered a question related to New Brunswick statutory provisions under workers’ compensation legislation dealing with entitlement to benefits for workers over the age of 63 or 65. The court asked itself the question of both who the group claiming discrimination is, and who that group should be compared to.

The court stated:

Comparing disabled workers over 65 with disabled workers under 65 would only add unnecessary confusion to the issue at hand... Above all else, we are not dealing with an allegation of discrimination based on disability.

The court concluded that the minority and comparator groups to be considered were simply individuals over the age of 65 and individuals under the age of 65. In drawing this conclusion on the choice of comparator group, the court referenced Law and Gosselin, two cases that predated the more recent cases in Hodge and Auton, and which did not involve the extensive analysis that was undertaken in Hodge and confirmed in Auton, regarding the concept of comparator group.

With due respect to the court in Laronde, I interpret the Hodge and Auton analysis differently, and find the analysis in those decisions persuasive of a different conclusion.

One of the purposes of the legislative scheme is the payment of compensation for disabled workers who have suffered work-related injuries. Therefore, while the discrimination being argued is age-related, it is made in the context of a statute that deals only with disabled workers. The purpose of s.43 is to pay for a loss of earnings and so the comparator group ought to be injured workers who have sustained a loss of earnings as a result of a work-related injury.

As well, the substance of the Laronde decision does not portray that the court considered what group most closely mirrors the characteristics of the claimant group relevant to the benefit sought, except for the personal characteristic of the enumerated ground of discrimination, that being age. If age is the enumerated ground, the group of workers that most closely mirrors the group claiming discrimination is injured workers who suffer a loss of earnings as a result of a work-related injury, who are younger than age 63.

The question of whether the comparator group aligns with the benefit of people potentially entitled to the benefit necessitates further refinement of the comparator group, to injured workers who are suffering a loss of earnings as a result of a work-related injury, who are in receipt of LOE benefits and who are younger than age 63.

The group set out above, as the worker representative argued, is identical to the group claiming discrimination in every way except for their age, which is the enumerated ground of discrimination.

I agree that if the comparison was simply to other disabled workers in general or to all older workers, there would be no alignment to the universe of people potentially entitled to loss of earnings benefits under the WSIA.

Based on the above, I find the most appropriate comparator group in the s.15(1) analysis pursuant to this case, are injured workers in receipt of LOE benefits who were injured before they turned 63 years of age.

After establishing the appropriate comparator group, it is still necessary to consider whether there is differential treatment between the group claiming discrimination and the comparator group. On this question, the worker representative suggested in his oral argument that the following example establishes the answer quickly and succinctly in the affirmative. He suggested that based on s.43 of the WSIA, a worker injured at age 25 could potentially receive LOE benefits for 40 years if the circumstances warranted such.

In contrast, a worker injured at age 63 could only receive LOE benefits for 2 years, regardless of the circumstances of the individual injury.

The fact circumstances in the example, as described by the worker representative cannot be denied, and therefore, on its face, s.43(1)(c) results in differential treatment between the minority and comparator group. While I find that this component of the legal test has been met, I will come back to the example posited by the representative later in this decision, in the context of the question of substantive discrimination.

Enumerated or Analogous Grounds

This component of the legal test has also been met, as the differential treatment at issue in this case is based on age, which is an enumerated ground of discrimination outlined in the Charter.

Substantive Discrimination

Within the larger three part legal test that was set out by the SCC in Law in 1999, the analysis required under the concept of substantive discrimination contains a further subset of four factors that need to be considered/four questions to be answered in the affirmative. However, it is important to note that the overriding principle to be evaluated related to the question of substantive discrimination is whether the differential treatment has the effect of unfairly withholding benefits available to others in a manner that demeans the essential human dignity of the group.

The first question to be answered is whether there are pre-existing disadvantages or stereotypes that are reflected in the challenged legislation. The legislative provision at issue establishes in law the supposition that individuals over the age of 65 no longer continue to work.

Regarding the issue of pre-existing stereotyping of older people, the SCC in Tetreault cited the statement of a supreme court justice in a previous decision, which I will set out below, at least in part:

The most harmful and singular aspect of section 31 of the Act is that it permanently deprives the applicant, and any other person of her age, of the status of a socially insured person by making her a pensioner of the state, even if she is still looking for a new job.Regardless of her personal skills and situation, she is as it were stigmatized as belonging to the group of persons who are no longer part of the active population…perpetuates the same insidious stereotype…namely that a person who is 65 years or older and has been unfortunate enough to lose his job can no longer be retrained for the labour market and must at that point become the complete responsibility of the special social assistance programs of the government…

I agree it is well established in case law that older workers historically and currently suffer from stereotypes regarding their productivity, that is their ability and willingness to remain in the workforce. Indeed, even in Laronde, a case where a similar legislative provision was ultimately found by a provincial court of appeal not to violate s.15 of the Charter, the justices agreed that the pre-existing disadvantage contextual factor weighed in favour of the appellant’s discrimination plea.

The second question is whether there is correspondence between the needs of the group claiming discrimination and the manner in which they are treated within the challenged legislation. Put more plainly, does the separate regime for the payment of LOE benefits depending on age take into account the actual needs, capacity or circumstances of older injured workers in a manner that respects their value as human beings and members of Canadian society? The overall purpose of the legislative scheme is relevant to this consideration as well.

On the face of it, the statutory provision does not take into account the actual needs, capacity or circumstances of older injured workers, as it simply automatically concludes that all workers injured after the age of 63 would not remain part of the workforce and could not be retrained for a position in the open labour market; it does so pursuant to the automatic termination of benefits for such workers after a prescribed period of time, in this case two years.

As noted in Martin, and as recognized by the worker representative in this case, there are circumstances where distinctions, classifications and standardization are necessary and are established in a manner that respects the needs of the group and maintains a positive purpose. But the question must always be asked as to whether the distinction is, as described in Martin, “implemented in such a way as to preserve the essential human dignity of individuals.”

On the issue of the overall purpose of the legislative scheme, the worker representative referenced the detailed reasoning of the court in Martin, as that case also involved a workers’ compensation scheme.

As in Martin, the scheme involves a historical trade-off between employers and workers, where employers are protected against the possibility of being sued in tort for

work-related injuries and workers are entitled to reasonable compensation for such injuries without the delays, costs and uncertainties of the courts, while only needing to show their injury was caused by an accident arising out of and in the course of their employment.

In Martin, the challenged provision maintained the bar to tort actions but excluded chronic pain from the purview of the general compensation scheme provided for by the Act, and excluded employers from the duty imposed on other employers to take back and accommodate injured workers. The court concluded this contextual factor pointed towards discrimination.

In this case, the bar to tort action remains, and there is a restriction on the payment of LOE benefits for workers injured after they have reached the age of 63. However, I find there are considerable differences between the statutory provisions in Martin and in the case before me, differences that are quite relevant to the evaluation, as described by the SCC in Gosselin, of the impugned provision’s purpose and effect.

The Nova Scotia legislation barred entitlement and therefore any type of WSIB benefit to chronic pain sufferers. The impugned provision in the case before me contains no such complete barrier to entitlement.

As well, it is important to note that Charter age discrimination cases referenced by the representative in this case dealt with mandatory retirement provisions at age 65 and the denial of unemployment insurance benefits to anyone over the age of 65, and that the legislation at issue permits the payment of health care benefits beyond the age of 65, and as well allows for the payment of LOE benefits up to a maximum of two years for anyone injured on the job after they reach the age of 63. In the fact circumstance of the worker whose claim has become attached to this Charter challenge, the worker was injured on the job at age 67 and was paid full LOE benefits until he was aged 69.

I am persuaded on this point by the statement of the NBCA in Laronde:

This is evidence that the Legislature was cognizant of the fact that some individuals continue to work past age 65. Alternatively stated, the Legislature recognized that not everyone retires at age 65.

The representative focused on a finding by the court in Tetreault in his submissions. He argued the same result should naturally flow in this case as that which occurred in Tetreault. The court in that case concluded that if mandatory retirement provisions violated s.15 then so too must provisions that denied unemployment insurance benefits to anyone over the age of 65.

The worker representative asked that I draw a similar conclusion in this case; that if mandatory retirement provisions and unemployment insurance provisions violate s.15 then so too must the provision which restricts the payment of LOE benefits for a two year period of time for anyone injured after the age of 63. Given the comments made above, I am not prepared to accept this view.

As noted in Laronde, the purpose for the establishment of the age restriction in the workers’ compensation legislation was to recognize that this type of benefit should be paid as an indemnity against lost wages, as opposed to remaining a life-time pension plan. Age 65 was chosen based on the fact it was/is the age at which pension benefits usually become available. An excerpt from the December 1986 Weiler Report noted a similar policy decision as to what was made in New Brunswick, that loss of wages benefits should end at a time when they would generally be replaced by a pension benefit:

The vast majority of non-disabled workers retire whenthey reach a certain age – typically at or around sixty-five, which is when most public and private pension plans start to pay retirement benefits.

Based on the above, I find it reasonable to suggest the provision takes into account the typical circumstances of such workers, in that it is an attempt to reflect the usual working/earning patterns for workers in Ontario. Statistical evidence referenced by the court in Laronde, noted that close to 75% of Canadians retire before the age of 65, and the percentage becomes 86% at the age of 65. I have also taken judicial notice of published figures from Labour Force Survey documentation from Statistics Canada outlining the average or median retirement age of Canadians for 2007 was 61.6 years of age.

In the above context, I accept the following determinations made in Laronde: that the legislative provision at issue operates on the assumption that most people retire by at least age 65, and that far from being stereotypical or arbitrary, it corresponds to what is actually occurring in the workplace.

I would also like to comment on an example provided by the worker representative in support of his argument. He noted a worker injured at 25 could potentially receive 40 years of LOE benefits while a worker injured after age 63 could only receive two years of LOE benefits. There is clearly a stark contrast in such an example in the duration of entitlement between such workers. However, it is important to remember that even for the worker injured at the age of 25, LOE benefits would be terminated when he or she reached the age of 65. In such an example, the distinction is very much based on the timing of the injury; that is where a worker happens to fall on the age continuum at the time of the injury.

The third question/factor relates to whether the differential treatment has an ameliorative purpose, that is does it attempt to improve the circumstance of some other more disadvantaged group. There is no evidence to support that the differential treatment has such a purpose, and on its face it is reasonable to accept that the purpose of the limitation is not to provide a greater benefit to a more deserving group.

The last factor relates to the nature of the interest affected by the differential treatment; how significant is the interest and does it result in a loss of human dignity?

I do find at the outset that the economic interest at issue in this case is significant, as it denies, after two years, entitlement to WSIB benefits that represent the financial replacement for loss of earnings (LOE benefits). However, the current legal test requires more than an impact on an economic interest, no matter how considerable. The interest that is negatively impacted must result in a loss of human dignity for the group claiming discrimination.

As noted by the representative, the court in Martin accepted that an economic interest (economic deprivation) may on its own lead to a loss of human dignity as it “may be symptomatic of widely-held negative attitudes towards the claimants and thus reinforce the assault on their dignity.”

I have already accepted, on page 13 of this decision, older workers suffer from stereotypes regarding their productivity, with the assumption that they are both unable and unwilling to remain in the workforce in a constructive manner. However, set out above related to the “correspondence” contextual factor, I did not find that the legislative provision which concluded the workers’ compensation scheme should not remain a life-time long-term disability insurance program is stereotypical and arbitrary in its approach.

Therefore I do not find that the distinction drawn between disabled workers under the age of 65 and those over the age of 65 undermines the essential human dignity of those over the age of 65.

I reiterate in this context that the statutory provision at issue is different than many of those where a finding of unconstitutionality on the basis of age has been made, such as in Tetreault, where an individual was disentitled to unemployment insurance benefits as of the date he/she turned 65. Section 43(1)(c) of the WSIA does not result in LOE benefits coming to a full stop when a worker reaches age 65. Instead, it allows a worker who is injured after age 63 to continue receiving benefits for two years beyond the date of injury; as in this case where the worker was injured at age 67 and was in receipt of full LOE benefits until he was aged 69. This approach certainly cannot be said to be undermining the essential human dignity of those workers who have decided to continue working beyond the age of 65.

Application of Section 1 of the Charter

Based on the above conclusions, it is not necessary to evaluate and/or apply Section 1 of the Charter in this case.

CONCLUSION

I find the balance of evidence supports that s.43(1)(c) of the WSIA does not violate s.15(1) of the Charter. Therefore, the section was appropriately applied in this worker’s case and the worker is not entitled to ongoing LOE benefits beyond October 21, 2005.

The worker appeal is denied.

DATED October 1, 2008

K. Wuori Appeals Resolution Officer Appeals Branch