Speaker's Corner: Statutory change needed to address age discrimination in workers’ compensation law

Following the recent successful challenge of Ontario’s Workplace Safety and Insurance Act over its failure to treat mental distress claims in a manner similar to those involving physical disability, new arguments are in progress that assert the same legislation fails to offer equal protections to older workers.

Ontario’s legislation presently caps entitlement to benefits at age 65 or for a two-year period where the accident occurred after the claimant’s 63rd birthday. The same two-year limit applies to people injured after age 65.

Further, the act’s obligation to rehire an injured worker ceases at age 65.

The present statutory regime has been in place since 1990. Ironically, prior to that date and from the time of the introduction of the workers’ compensation system in 1915, employees were entitled to a lifetime income for a permanent disability.

The revisions to the act in 1990 came with an implicit presumption that age 65 brought with it a retirement date that at the time was a mandatory one as it wasn’t then a violation of the Human Rights Code to terminate someone who reached age 65.

When the province amended the code with respect to mandatory retirement in December of 2006, it included a specific exemption for workers’ compensation cases.

Other provinces have treated the issue differently. British Columbia, for example, has amended its workers’ compensation statute to allow the worker to defeat the presumption that benefits end at 65.

Alberta allows for workers’ benefits past age 65 where the evidence supports such an outcome.

Saskatchewan’s legislation contained a similar term that limited the receipt of benefits to the age of 65. While the Court of Queen’s Bench found this provision to be a violation of the Charter of Rights in Freedoms in 1997, it upheld it on the basis of s. 1 and the reasonable-limits qualifier. The Court of Appeal agreed.

In 2002, the Nova Scotia Workers’ Compensation Appeals Tribunal considered this issue in a case involving a worker injured at age 66 who was limited to a two-year benefit entitlement. It found the law to be offside s. 15 but saved by s. 1 of the Charter.

In Ontario, the decision of the Workplace Safety and Insurance Appeals Tribunal that considered this issue and rejected the Charter argument is now headed to the Divisional Court on a judicial review application.

The Office of the Worker Adviser joined counsel for the employee in supporting the appeal.

The facts of the case showed the employee had suffered a workplace injury at age 63 in February 2001. He was awarded benefits until age 65 in May 2002 and a 37-per-cent non-economic loss.
At the time, the employer had in place a mandatory retirement policy at age 65.

In February 2003, the worker asserted he had noted a second source of injury from the same February 2001 accident.

While initially denied, he was successful in this application for benefits on first appeal but limited to the two-year period as set out in the statute to February 2003.

The majority decision of the appeals tribunal made several important findings. First, it found the great majority of Canadians do retire at age 65 or earlier. Secondly, it noted the scheme in question is one of insurance.

The expert witness called by the worker testified that a large percentage of workers now intended to work past age 65 but this evidence didn’t carry the day.

The tribunal determined such a plan of insurance must be based on an actuarially predictive behaviour that the evidence showed was, in the main, retirement at age 65 or sooner.

The employer maintained a policy of mandatory retirement that allowed for the conclusion that the worker had no expectation of working past age 65. The tribunal also noted the worker hadn’t shown any evidence of an intent to work past age 65.

The majority decision found no Charter violation and that, had it done so, s. 1 would have applied.

The dissent found a s. 15 Charter violation not saved by s. 1 that would have allowed benefits until age 71.

The court will hear the worker’s judicial review application in December. Similar cases are pending.

The argument that the Human Rights Code amendment may apply to every aspect of life except for the workers’ compensation regime is bewildering.

Many practitioners share this view. Barry Fisher, a prominent employment law mediator stated: “The lingering effects of the myth that one’s working life ends at 65 is taking longer to rid itself from certain areas of employment law. It may have made some sense to keep these exceptions as a short-term transitional policy but a continuation of these discriminatory exceptions for an indefinite period would not appear to be justified.”

Others, however, disagree. Norm Grosman of Grosman Grosman & Gale LLP notes the decision is a well-reasoned one and believes the act may well survive the Charter challenge given the hybrid of an insurance and benefit scheme.

Peter Israel, employment law counsel at Israel Foulon LLP, also advocates for certainty in the law without years of Charter litigation and says “both employees and employers need and deserve clarity in this complex growing quagmire.”

John McKinnon, counsel for the Injured Workers’ Consultants legal clinic, notes the appeals tribunal decision is only binding in this specific case. The administration may still continue to apply the wording of the statute even where one case has agreed that there’s a Charter violation. The proper step, he logically suggests, is for the Workplace Safety & Insurance Board to recommend revisions to the statute under s. 159(2).

The reality is a legislative amendment would most readily and effectively deal with the issue. Failing this, the Charter arguments will continue.

David Harris, a former lawyer, is one of authors of the new book Disability Issues in Employment Law.

For more, see "Employment lawyers should prepare for new world following mental-distress ruling" and "Lawyers divided on WSIB stress-claim ruling."

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

Law Foundation of Ontario forms strategic partnership with Indigenous Peoples Resilience Fund

Ontario Superior Court upholds the College of Physiotherapists’s authority over billing inaccuracies

Housing supply needs more public-private collaboration, less red tape, say lawyers

Judicial vacancies holding up construction litigation: litigators

With new federal funding Pro Bono Ontario expanding program for Ukrainian nationals across Canada

Ontario Court of Appeal resolves access rights between parents and maternal grandparents

Most Read Articles

Ontario Court of Appeal resolves access rights between parents and maternal grandparents

Judicial vacancies holding up construction litigation: litigators

Ontario Court of Appeal upholds dismissal of statute-barred personal injury claim

With new federal funding Pro Bono Ontario expanding program for Ukrainian nationals across Canada