Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20180043 Objecting Party: Worker Represented by: Worker Advisor Respondent: Employer Represented by: Employer Advisor Hearing: Hearing in Writing Heard by: Helen Shaw, Appeals Resolution Officer Dated: September 18, 2018
Issue
The worker is seeking loss of earnings (LOE) benefits following knee surgery on June 27, 2013. Benefits were denied under section 43(1)(b) of the Workplace Safety and Insurance Act (the WSIA) because she was over 65 years of age at the time of the surgery. It is the worker’s position that section 43(1)(b) violates section 5(1) of the Ontario Human Rights Code (the Code) with respect to age discrimination.
Background
The worker was employed as a deli clerk. On April 14, 2008 she injured her right knee while in the course of her job duties. She was diagnosed with a knee strain. She was 60 years old at the date of injury and did not miss any time from work as a result of the initial injury.
In February 2012, the worker claimed a recurrence. Entitlement was denied in a decision dated April 27, 2012, which was upheld by an Appeals Resolution Officer on September 18, 2013. A decision from the Workplace Safety and Insurance Appeals Tribunal (WSIAT) dated January 4, 2018 allowed entitlement for the recurrence, including surgery on June 27, 2013. The level and duration of benefits was returned to the operating area for further adjudication. The worker claimed she lost eight weeks of pay following the surgery, and then returned to work.
A decision from a Case Manager dated January 18, 2018 denied entitlement to LOE benefits from June 27, 2013. Although the worker was still working at the time she had the knee surgery, LOE benefits could not be paid because she had turned 65 years old on April 4, 2013. An Appeals Resolution Officer conducted a merit review and confirmed the denial of LOE benefits on May 28, 2018.
In a letter dated June 26, 2018 the worker representative raised a question under the Code, asserting the decision to deny LOE benefits following surgery for a work-related injury, violated the Code with respect to age discrimination.
Authority
Legislation
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the WSIA), sections 1, 2.1(1) and 43(1)
Human Rights Code, R.S.O. 1990, c. H.19 (the Code), sections 5(1), 10(1)
Canadian Charter of Rights and Freedoms, (the Charter)
Policies and Procedures
Operational Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
Appeals Services Division Practice & Procedures, January 1, 2018
Ontario Human Right Commission Policy on discrimination against older people because of age, sections 4.1 and 4.3
Case Law
Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 SCR 513, 2006 SCC 14 (Tranchemontagne)
Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289 (Gouthro)
Analysis
I have considered all of the available information, legislation, relevant policies and case law in reaching this decision. I am unable to find that s. 43(1)(b) violates the Code. My reasons are explained below.
The Worker’s Position
In his letter of June 26, 2018, the worker representative argued that section 43(1) of the WSIA and Operational Policy 18-03-02 result in differential treatment and discrimination based on age, noting the worker had LOE benefits withheld because of her age while a worker under age 65 would have been entitled to LOE benefits for the same period. He argued this violates section 5(1) of the Code.
The employer provided no submissions on the matter before me.
Statutory Provision Being Challenged
Section 43(1) of the WSIA, states that 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.
The same loss of earnings criteria are found in Operational Policy 18-03-02.
Because the worker was 60 years old on the date of injury, payment for loss of earnings could not continue beyond the day she reached 65 years of age. The loss of earnings she sustained following the surgery in June 2013 occurred after her 65 birthday; therefore, payment of LOE benefits was prohibited by section 43(1)(b) and by the related policy.
The worker representative argued section 43(1)(b) violates Section 5(1) of the Code, which states:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Under section 10(1) of the Code, “age” means an age that is 18 years or more.
Jurisdiction to Apply the Code
The Appeals Services Division Practice & Procedures document confirms that the Appeals Services Division has the jurisdiction to consider a question under the Ontario Human Rights Code, pursuant to the Supreme Court of Canada (SCC) decision in Tranchemontagne v. Ontario.
Having considered the decision in Tranchemontagne, I note the decision from the SCC also recognized the power of the legislature to restrict the jurisdiction of tribunals, as specifically discussed in paragraph 27 from the decision, which reads as follows:
Yet the power to decide questions of law will not always imply the power to apply legal principles beyond the tribunal’s enabling legislation. As noted above, statutory creatures are necessarily limited by the boundaries placed upon them by the legislature. Subject to its own constitutional constraints, a legislature may restrict the jurisdiction of tribunals however it sees fit.
I find my jurisdiction is limited in this case by section 2.1(1) of the WSIA, which states the following:
A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it that requires or authorizes a distinction because of age applies despite sections 1 and 5 of the Human Rights Code.
I find the intent of section 2.1(1) of the WSIA is to remove my jurisdiction to consider a violation of sections 1 and 5 of the Human Rights Code for a distinction because of age. This would mean I do not have the jurisdiction to make a decision on the issue before me, which is that the age provision in section 43(1)(b) violates section 5(1) of the Code.
In the event that I am incorrect about the jurisdictional limits imposed by section 2.1(1), I will also proceed to comment on the merits of the alleged violation of the Code.
Assessment of the Arguments
I note the submission from the worker representative referenced section 4.1 of the Ontario Human Rights Commission Policy on discrimination against older people because of age (OHRC policy). The section indicates that it may be necessary to consider whether differential treatment can be said to constitute discrimination in the sense of being something that is protected by human rights law. The OHRC policy adopts an approach consistent with the one taken by the SCC in equality claims under section 15 of the Charter, identifying three broad inquiries as a tool for determining whether discrimination has occurred:
Differential treatment - Was there substantively differential treatment?
Was the differential treatment based on an enumerated ground?
Discrimination in a substantive sense - Does the differential treatment discriminate by imposing a burden or withholding a benefit from an individual? Is the discrimination based on a stereotype or does it make distinctions that are offensive to human dignity?
Differential Treatment Based on an Enumerated Ground
I find section 43(1)(b) results in differential treatment based on an enumerated ground, noting age is an enumerated ground under section 5(1) of the Code. In this case, the worker’s initial injury happened when she was 60 years old, but the recurrence for surgery occurred after she turned 65 years old. A worker under the age of 65 would have qualified for LOE benefits. The only reason the worker in this claim was not entitled to LOE benefits following the surgery was because it happened after her 65th birthday. On the face of it, I find that to be differential treatment.
Discrimination in a Substantive Sense
Although section 43(1)(b) results in differential treatment based on age, I am not satisfied it results in discrimination in a substantive sense. Although it withholds a benefit from workers over age 65, I find it is not based on a stereotype and does not make distinctions that are offensive to human dignity. In reaching this conclusion, I am persuaded by the Ontario Superior Court of Justice Divisional Court decision in Gouthro v. Workplace Safety and Insurance Appeals Tribunal (WSIAT), in which the court considered a request for judicial review of a decision by WSIAT.
Gouthro differs from the case before me in that the Applicant in that case claimed section 43(1)(c) violated the Charter, while I am considering whether 43(1)(b) violates section 5(1) of the Code. Nevertheless, I find the rationale and conclusions reached in that decision apply equally to the case before me for the following reasons:
Both subsections of section 43 result in limitations on payment of LOE benefits based on age.
In Gouthro, the court acknowledged that “section 43(1)(c) does not exist in a vacuum; in any analysis of it some consideration must be given to the fact that section 43(1)(b) contains a general working age limit of 65 years”.
The Gouthro decision provides an analysis of the reasons and purpose behind the age restrictions in section 43 that apply to both sections 43(1)(b) and (c).
When determining if discrimination has occurred, section 4.1 of the OHRC policy adopts criteria consistent with the approach taken by the courts when considering claims under section 15 of the Charter; therefore, I find the same conclusion should be reached whether the challenge arises under section 15 of the Charter or under section 5(1) of the Code.
The Gouthro decision contains the following findings relevant to the issue before me:
LOE benefits are part of a scheme of benefits provided by the WSIB, some of which are available for life and some which are not.
The WSIA operates primarily as an insurance scheme, insuring workers for actual wage loss. It does not establish a universal disability program or a social benefits scheme.
The purpose of the Act is established in section 1 of the WSIA, which requires that its mandate be accomplished in a financially responsible and accountable manner. Applying insurance principles is consistent with the legislative purpose.
The court concluded that the age limitation in section 43(1)(c) was not the result of prejudice or stereotyping based on age because the limitation is grounded in statistically verifiable facts that most workers stop working by age 65.
Section 43(1)(c) is not discriminatory and therefore is not contrary to section 15(1) of the Charter.
I am satisfied that the principles accepted by the court in Gouthro also apply to the facts before me and that section 43(1)(b) does not result in substantive discrimination based on prejudice or stereotyping. I find the restriction on payment of LOE benefits past age 65 is consistent with the larger scheme of benefits provided by the WSIA and the need to establish a reasonable termination point for LOE benefits, at an age when most workers stop working. Section 43(1)(b) is also consistent with the requirement for financial responsibility and accountability.
I also find that the analysis contained in Gouthro is consistent with section 4.3 of the OHRC policy. That policy provides that once a prima facie case of discrimination has been established, there is a three-step test established by the SCC for determining whether a discriminatory standard can be justified as a bona fide requirement by demonstrating the following about the standard:
It was adopted for a purpose or goal that is rationally connected to the function being performed.
It was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal.
It is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
If LOE benefits are provided in a financially responsible way, it supports the sustainability not only of LOE benefits, but also of the overall benefit scheme provided by the WSIA. I find the age limitation in section 43(1)(b) was thus adopted for a purpose or goal that was connected to the larger function and purpose of the insurance scheme. I find the age limitation in section 43(1)(b) is also consistent with the established purpose of the WSIA, to provide insurance for actual wage loss and not for the life of the worker; therefore I find section 43(1)(b) was adopted in good faith, in the belief that it was necessary for the fulfilment of that purpose. Finally, a requirement to pay LOE benefits for life could threaten the ability of the WSIB to meet its benefit obligations and to fulfil its legislated mandate, which would cause undue hardship to the insurance scheme and to the workers of Ontario who rely on it. For these reasons, I find the discriminatory standard contained in section 43(1)(b) can be justified as a bona fide requirement.
In summary, I find that section 2.1(1) of the WSIA removes my jurisdiction to consider a violation of sections 1 and 5 of the Human Rights Code for a distinction because of age. However, even if I have jurisdiction, I am unable to conclude that section 43(1)(b) of the WSIA violates the Code for all the reasons explained above.
Conclusion
I am unable to conclude that section 43(1)(b) of the WSIA violates section 5(1) of the Ontario Human Rights Code. There are no grounds to overturn the denial of loss of earnings benefits following the surgery on June 27, 2013.
The objection is denied.
DATED: September 18, 2018
Helen Shaw Appeals Resolution Officer Appeals Services