December 22, 2014
Mathews Dinsdale & Clark LLP recently represented, the Intervenor, Schedule 2 Employers’ Group in Gouthro v Workplace Safety and Insurance Appeals Tribunal and City of Toronto 2014 ONSC 7289, Divisional Court File No. 30/14, a judicial review of WSIAT No. 512/06. This decision has been anxiously anticipated in the field of workers’ compensation law as the Applicant, Daniel Gouthro, directly challenged the home legislation of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), alleging that the limits on recovery for Loss of Earnings (“LOE”) benefits under the Workplace Safety and Insurance Act (the “WSIA”) beyond age 65 were unconstitutional.
Gouthro received LOE benefits until February 2003 after he was injured at work on February 5, 2001. He was 63 years of age when this incident occurred and was subject to mandatory retirement at age 65. Section 43(1)(c) of the WSIA provides that workers who are 63 years of age or older on the date of the injury are eligible for up to two years of LOE benefits after the injury. This is an exception to section 43(1)(b) of the WSIA, which terminates LOE benefits at age 65 for those who are injured before age 63.
In order to be entitled to this exception the worker must demonstrate that they intended to continue working past age 65, therefore suffering a loss of earnings. Gouthro was granted this exception despite his employer, the City of Toronto, having a mandatory retirement age of 65. Gouthro then challenged the constitutionality of section 43(1)(c) alleging that the age limitations in the provision discriminated on the basis of age, contrary to the Charter of Rights and Freedoms (the “Charter”).
On December 17, 2014, the Ontario Divisional Court unanimously upheld the decision of the WSIAT rejecting Gouthro’s claim that section 43(1)(c) of the Act discriminates on the basis of age in a manner that violates the Charter. In its decision the Divisional Court made several important findings:
In addition to finding that section 43(1)(c) of the WSIA was not contrary to section 15(1) the Divisional Court further held that even if section 43(1)(c) was discriminatory, it would be saved under section 1 of the Charter. In performing its section 1 analysis the Court stated the following:
This is an important victory for the Workplace Safety and Insurance Appeals Tribunal, the City of Toronto, and Intervenors, including the Schedule 2 Employers’ Group, who sought to, and succeeded in, upholding the validity of section 43(1)(c) of the WSIA.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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