Law Times

Law Times • JuLy 21, 2014 Page 7 www.lawtimesnews.com COMMENT Statutory change needed to address age discrimination in workers' compensation law By daVid harris For Law Times ollowing 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 ben- efits 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 work- er 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 some- one who reached age 65. When the province amended the code with respect to mandatory retirement in December 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 involv- ing 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 suf- fered 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 employ- er 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 appli- cation 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 ma- jority 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 re- tirement 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 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 amend- ment may apply to every aspect of life except for the work- ers' 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 ar- eas 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 ex- ceptions for an indefinite period would not appear to be justified." Others, however, disagree. Norm Grosman of Gros- man 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 em- ployers need and deserve clarity in this complex growing quagmire." John McKinnon, counsel for the Injured Workers' Consultants legal clinic, notes the appeals tribunal deci- sion is only binding in this specific case. The administra- tion 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 re- visions 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. LT David Harris, a former lawyer, is one of authors of the new book Disability Issues in Employment Law. u SPEAKER'S CORNER F Marriage laws have long evolved to respect personal choice he mass wedding of some 60 gay and lesbian couples at Casa Loma during the World Pride event in Toronto got me thinking about how laws restricting who can marry have changed over time. It's easy to forget that the prohibition on same-sex marriage is only the most recent legal impediment to mar- riage to have fallen. The equivalent to the gay marriage is- sue in the 19th century was, believe it or not, marriage with a deceased wife's sister. Ecclesiastical law rendered such marriages voidable, but the English Marriage Act of 1835 made them absolutely void. The move was highly controversial. Reform of the law was subject to debate at Westminster almost every year until such marriages were finally validated in 1907. W.S. Gilbert and Arthur Sullivan satirized the phenomenon in Io- lanthe, referring to the "annual blister, mar- riage with deceased wife's sister." As with gay marriage, religion played a huge role in the debate. Anglican canon law regarded relationships by marriage as equivalent to those by blood. Thus, a man committed incest by marrying his deceased wife's sister and the bishops in the House of Lords staunchly opposed reform for decades. In Confederation-era Canada, the pre- 1835 English position was thought to ap- ply. Reform came in 1882 after a failed attempt in 1880 promoted by Catholic Conser vative MP and later Supreme Court justice Désiré Girouard. The religious aspect played out somewhat dif- ferently in Canada where An- glicanism was less hegemonic. Many Protestant, Catholic, and Jewish clergy interpreted the biblical passage upon which the prohibition was based as forbidding only contemporane- ous marriage to two sisters at a time when Jewish law permit- ted polygamy. Thus, there was no problem with sequential marriage to two sisters after the first had died. But an important theme in the debate was the same as with gay marriage: The restriction in question could be framed in some sense as being an artificial and manmade prohibition on lov- ing relationships that were socially valuable. The 19th century saw a plethora of race-based marriage restrictions south of the border. Laws in many states prohibited intermarriage between whites and a whole range of other races from blacks to native Americans to Asians. When the U.S. Su- preme Court finally declared such laws in- valid in 1967 in Loving v. Virginia, 16 states still had them. There was pressure in Canada to intro- duce such prohibitions after 1867, but Par- liament never even debated or adopted such laws. That's not because Canada was neces- sarily more enlightened on racial issues but instead ref lected the greater value placed on patriarchy. Race-based marriage impedi- ments restrict a highly valued right: that of men to choose their own marriage partners. (The 19th century assumed males were the active parties in the mating game, of course.) Only a more fundamental pur- pose — that of maintaining white privilege itself — could justify such an interference. In Canada, however, white superiority was something people could take for granted. Canadians no longer saw the aboriginal population as a menace after the failed Northwest Rebellion of 1885 and other racialized populations were too small to threaten the entrenched assumptions of white privilege. There was simply no need to restrict people's marriage choices in the name of a supposed higher purpose. Ca- nadian attempts to discourage "miscegena- tion" (a word invented in the 1860s to make racist concerns about mixed-race breeding sound scientific) were more indirect. On the Prairies, the law forbade Asian employ- ers, who were often restaurant owners, from hiring white women employees based partly on racist stereotypes of lustful Asian men s educing vulnerable white girls. In addition, social pressure alone was strong enough to discourage interracial marriage if not prevent it altogether. As Constance Backhouse has shown, as late as the 1930s the Canadian branch of the Ku Klux Klan actively harassed interracial cou- ples with a view to preventing them from marrying. Finally, there's the issue of polygamy. The federal government regarded polygamy among the Mormons, some immigrant groups, and aboriginals as a grave problem in the 19th century and sought to suppress it. The Department of Justice eventually decided that marriages according to na- tive custom (whether between indigenous parties or mixed marriages) would be valid even if they were potentially polygamous but actual polygamy wasn't permitted even if both parties were indigenous. In the 21st century, Mormon polygamy again became an issue in Canada and many scholars thought it couldn't withstand a constitutional challenge. The B.C. Supreme Court upheld the Criminal Code prohibi- tion on polygamy in 2011, however. Marriage prohibitions related to po- lygamy and close family relationships are considered valid as preventing different types of harm. They have endured, but all others have fallen by the wayside as re- spect for personal choice in intimate mat- ters has become the law's main guiding principle. LT Philip Girard is a legal historian and pro- fessor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. That's History Philip Girard T

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