Cutting of WSIB payments at age 65 not a Charter violation

Work Injury Claim Form

A recent Ontario Divisional Court decision has confirmed that it is not a Charter violation to terminate Workplace Safety and Insurance Benefits after two years when an employee is age 63 or older at the time of the injury.

This is another in a line of recent cases that illustrates that although mandatory retirement has been abolished, older workers are not necessarily entitled to the same suite of benefits as their younger co-workers.

Daniel Gouthro asked the Divisonal Court for a declaration that terminating his workers’ compensation loss of employment (LOE) benefits at age 65 was discrimination based on age under the Charter of Rights and Freedoms and for an extension of his benefits until age 71.

Gouthro was employed as a City of Toronto Parks attendant. He began working for the city in 1988. On February 5, 2001 he fell and hit his head on a locker. He was 63 years old at the time. He suffered cervical and lumbar strains. An adjudicator granted him loss of employment (LOE) benefits until he turned 65.

He also suffered a compensable back injury in 1982 and was receiving a monthly lifetime pension as a result. His LOE benefits were extended to February 5, 2003, i.e. two full years after he was injured, because he was able to establish that he would have continued working beyond age 65 if not for the compensable injury.

In the earlier hearing before the Workplace Safety and Insurance Tribunal, the majority concluded that that the general rule in s. 43(1)(c) of the WSIA that LOE benefits terminate at age 65 with the possibility of a two-year exception was based on 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 also 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 and that this approach was necessary to make sure that available benefits were appropriately targeted.

Actuary Peter Gorham testified that 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. Gorham also told the Tribunal that “providing income indemnification where the basis for loss is subjective in nature is not sound insurance or actuarial practice.”

Justice Marrocco noted that the proceedings were only dealing with Gouthro’s LOE earnings. In contrast, his 10% permanent disability award, paid as a monthly lifetime pension due to the 1982 back injury and his monthly 37% Non-Economic Loss benefit for back and neck injuries would continue for life.

He accepted the findings of the Tribunal that the WSIA creates a workplace insurance plan and that there had to be limits on who was eligible for benefits and for how long in order that the scheme remain financially viable

Therefore he was satisfied that Tribunal majority was correct in concluding that s. 43(1)(c) did not impose on Gouthro, either as an individual or as part of a group with a pre-existing disadvantage, prejudice or stereotyping based on age.

The Judge also said that if he was wrong and the cut-off date for benefits is in fact discriminatory, it could be justified under s.1 of the Charter because there was “a pressing and substantial objective” and “proportional means.”

He concluded that Section 43(1)(c) is 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.

The use of actuarial and statistical evidence to show few people actually work beyond 65 was not in my view sufficient to justify the impact of the LOE cut off for Gouthro, who was the applicant in these proceedings. It will be interesting to see how the law evolves in the next several years if more people work beyond age 65 either for personal satisfaction or because they need the money.

Also read: Why group insurance benefits can be reduced at age 65

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