Is the limit on the receipt of WSIB loss of earnings benefits unconstitutional because is discriminates on the basis of age? According to a decision of the Ontario Divisional Court, Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289, the law is just fine.
The case concerned an application for judicial review of a number of decisions from the Workplace Safety and Insurance Appeals Tribunal, (“WSIAT”) the independent tribunal vested with the responsibility of hearing appeals concerning applications for WSIB benefits.
In its decisions, the WSIAT had determined that the age restriction for the receipt of WSIB loss of earnings (“LOE”) benefits was constitutional, not withstanding its age restriction.
To put the issue in context, the case concerned section 43(1) of the Workplace Safety and Insurance Act, 1997, which 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.
To further put the case into context, the applicant, 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.
Mr. Gouthro suffered cervical and lumbar strains. A WSIB adjudicator granted him LOE benefits until he turned 65, the compulsory retirement age in the City of Toronto.
On his applications to the WSIAT, Mr. Gouthro sought two things:
- A declaration that s. 43(1)(c) is of no force or effect because it contravenes s.15(1) of the Canadian Charter of Rights and Freedoms; and
- An order directing the WSIB to pay loss of earnings benefits to him from the date of his injury until age 71.
Mr. Gouthro lost.
On his application for judicial review to the Ontario Divisional Court, the court upheld the decisions of the WSIAT.
In writing the reasons for the court’s decision, The Honourable Frank N. Marrocco, Associate Chief Justice of the Superior Court of Justice held as follows:
 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.
 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.
 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.
 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.”
 Finally… 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.
 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.
 Section 43(1)(c) is not discriminatory and therefore is not contrary to s. 15(1) of the Charter of Rights and Freedoms.
In the alternative, the court found that even if section 43 did offend the Charter, the provision was ‘saved’ by virtue of section 1 of the Charter, which provides as follows:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
Section 1 of the Charter basically says that the rights have limits. In this case, the court found that even if the law offended the principles contained within the constitution, such an infringement was justifiable. On this point, Justice Marrocco wrote:
 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.
Canada’s population is aging. People are working longer and, thanks to the way pension systems, including the Canada Pension Plan, have been administered, the same is likely to be a necessary evil for years to come.
The Divisional Court’s decision appears to say that the age limit on the receipt of WSIB LOE benefits is constitutional for two reasons: First, current statistics show that workers in the past have tended to retire before age 65 and; Second, the system cannot afford to extend benefits to workers beyond age 65.
In preparing this commentary I waxed and waned between the tensions of the competing interests of compensating an aging workforce and imposing reasonable limits on the extent of insurance coverage. Obviously I do not have the totality of the statistical evidence before me, as did the WSIAT and, I presume, Divisional Court. Lines have to be drawn somewhere. In this case, the evidence would appear to be demonstrate that where the lines have been drawn are reasonable.
I suspect that in the future the lines will have to be redrawn. However, the drawing of those lines and the imposition of limits should be set by the legislature, not the judiciary. If Ontario’s workforce believes that age 65 is too young for the termination of loss of earnings benefits for injured workers, then they can demand that their elected officials change the law. Even if the same might be opposed by employers, there are certainly more workers than there are employers. (Cynicisms about the mechanics of representational democracy aside.)
For now, and subject to any further appeal, the law stands. For how long is a separate question.
Takeaways for Employees with Labour Pains
The takeaway for injured employees is that the limits imposed by section 43 of the Workplace Safety and Insurance Act, 1997 remain in place for now. Challenges to the constitutionality of the Workplace Safety and Insurance Act, 1997 are difficult, but not unprecedented; see, for example, Decision No. 2157/09, 2014 ONWSIAT 938, which was summarized by this blog in the post WSIAT Says Prohibition Against Mental Stress Claims is Unconstitutional, in which the WSIAT said the prohibitions against claims for mental stress claims were unconstitutional.
Might a second kick at this issue result in a different outcome? Perhaps. But I suspect that such an outcome will not be seen anytime soon.
To reach the author of this blog, Sean Bawden, email email@example.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean Bawden, publisher of Labour Pains, can be reached by email at firstname.lastname@example.org or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
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