Rayonier v Unifor, Locals 256 and 89

In the Matter of an Arbitration

Between:

RAYONIER

(the Employer)

- and -

UNIFOR, LOCALS 256 and 89

(the Union)

Re: Grievances re Benefits after Age 65

Policy #256-19-10 and #N-89-4-86

Individual #256-19-07

A W A R D

Paula Knopf – Arbitrator

APPEARANCES:

For the Employer:

For the Union:

Mathias Link, Counsel

Sophie Arseneault, Counsel

Brett Demers

Robert Church, Counsel

Gerald Logan

Luc Ardet

Heather Gagnon

Luc Paquette

Karen Filion

The hearing of this matter was conducted by way of a Video Conference on

August 11, 2020; August 4, 5, 19 & 20, 2021; and

May 10 and June 10 & 30, 2022.

This Award addresses the Union’s allegation that the Employer has violated the

Collective Agreement and s. 15 of the Canadian Charter of Rights (the Charter) by

discriminating against employees on the basis of age with respect to the provision of

Long Term Disability (LTD) and Life Insurance. Policy grievances were filed by each of

the two Locals who are Parties to this case. An individual grievance was filed on behalf

of one employee who passed away before this case could be completed. He will be

referred to only as “the Grievor” in order to respect his family’s privacy. The Employer

has defended this case, relying on s. 1 of the Charter and the doctrine of estoppel.

Since the grievances raise a Charter question and put in issue the enforceability of the

Human Rights Code (the Code) and the Employment Standards Act (the ESA) and their

“carve out” of protections for LTD and Life Insurance, the Attorney-Generals (A-Gs) of

Ontario and Canada were given notice of this hearing. The A-G of Ontario’s office elected

not to intervene or attend. The A-G of Canada did not respond. However, counsel for the

Parties have undertaken to provide this Award to both of the A-G’s offices.

The case proceeded over several days of evidence that put the issues in context.

However, no attempt has been made in this Award to recite all the details of the

testimony received. Instead, this Award summarizes the most relevant information that

was provided. There is little factual dispute between the Parties. Where it does occur

and is of relevance, it is addressed.

Given the nature of the grievances and the conclusions that have been reached, this

Award is divided into two parts. The Life Insurance grievances have been decided on

the basis of the interpretation and application of the Collective Agreement alone. Those

grievances have been upheld and the reasons for that are addressed first. The issue of

LTD coverage for employees 65 and older involves consideration of contractual and

constitutional issues. The second part of this Award explains why those grievances

have been dismissed.

PART ONE – THE LIFE INSURANCE CLAIM

A. The Contractual and Factual Context

The Employer operates pulp and paper mills in northern Ontario. This case affects the

Union’s members at two locations, represented by the Union’s Locals 256 and 89. Their

work involves paper product manufacturing, sawmill operations and maintenance of the

related equipment. Their work is skilled and physically demanding.

The Parties are sophisticated labour relations partners with a long history of successful

collective bargaining. They participate in coalition bargaining involving five local unions

that make up the workforce for the Employer. They negotiate a Joint Agreement for

monetary issues, with specific provisions for each local bargaining unit. Their Collective

Agreement reflects a balanced approach to labour and management issues. It includes

acknowledgment of management rights and a host of benefits for the employees,

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including vacations, Short Term Disability (STD) coverage, Extended Health Insurance,

glasses, a dental plan, safety shoes, all of which are available to active employees until

their retirement, with no age restrictions.

The Life Insurance provision in the Collective Agreement is as follows:

35.00 Life Insurance

a) The Company will provide at no cost to the employee group life insurance

coverage to be two time [sic] annual earnings at the classified rate rounded

upwards to the nearest thousand dollars for all active employees.

b) When an employee who is eligible to pre-retirement or has reached age 60 or

more with five (5) years of continuous service retires, he will be entitled to a paid-

up life insurance policy of $5,000.00 paid by the Company at the time of

retirement.

c) The Company shall issue semi-annually to each employee covered under the

plan, a certificate evidencing the coverage to which he is entitled under the Plan.

The Employer provides Life Insurance through Sun Life. The Sun Life policy confirms

that “active employees” can receive “2 times annual earnings” up to a maximum of

$600,000. It also states:

Benefit Reduction: reduces to $5,000 on your 65^thbirthday.

Termination of Insurance: your retirement

The benefit reduction at age 65 became an issue for the Parties after the Grievor

approached the Union with his personal concerns about his failing health. He was over

65 years of age and his Short Term Disability benefits were about to expire. The Parties

agree that he was deemed to be an “active employee” under their Collective

Agreement. Just a few days before the expiry of the Collective Agreement under which

his grievance was filed, the Grievor passed away at the age of 66. It is agreed that his

death triggered entitlement to the Life Insurance payment promised in Article 35(a).

However, the Parties disagree about the amount that the Grievor’s estate should

receive. The Union is claiming that the Grievor’s estate should receive twice his annual

salary, based on the wording of Article 35(a), and/or due to the application of s. 1 of the

Charter. The Employer asserts that the Grievor’s estate is entitled to receive $5,000 in

accordance with the Sun Life Insurance Plan. In the alternative, the Employer has

asserted an estoppel defence.

Article 35 has been in place for decades. The Union’s witnesses had been under the

impression that one employee over the age of 65 passed away a few years ago and

they assumed that his estate was paid twice his annual salary. However, the only

reliable evidence about Death Claims filed since 2015 revealed that the Grievor is the

only active employee who passed away who was over the age of 65. The issue of the

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amount of life insurance payable to employees 65 and older has never been raised or

discussed in collective bargaining.

Luc Paquette is the President of Local 256. He has been on the Union executive since

2012. He testified that the issue of age and the reduced life insurance benefit first came

to the Union’s attention when the Grievor approached the Union seeking information

about his entitlement to LTD. His Short Term Sickness benefits were about to expire

and he wondered about his family’s future and life insurance entitlement if he did not

survive. Mr. Paquette testified that until the Grievor’s situation was clarified, the Union

was unaware that Sun Life reduced the life insurance payment after an active employee

reaches the age of 65. While Mr. Paquette conceded that the Union has negotiated for

improvement in benefits for decades with knowledge about what benefits were being

provided in many areas, the Union was unaware of the reduction of the life insurance

payout. He suggested that this may be partly attributable to the fact that the Company

had not been issuing the semi-annual certificates setting out employees’ entitlement to

coverage, contrary to Article 35(c). It was not disputed that these certificates have not

been issued for many years. On the other hand, no grievance was ever filed by the

Union about that non-compliance.

Mr. Paquette testified that he had often requested a copy of the Sun Life Booklet from

Human Resources, both for himself and on behalf of his members. However, he never

received a copy until it was furnished to him in electronic form after these grievances

were filed and prior to the negotiations for the renewal Collective Agreement. He said

that he was consistently told that he could access information on the Sun Life portal, but

that this only gave him the details of his own coverage.

The Union’s policy and individual grievance are based on the wording of Article 35(a).

The Employer has responded by stressing that the Union or Union officials were aware

or must have been aware of the terms of the Life Insurance plan because a Sun Life

Booklet was given to everyone at the time of their hire for several years while it was in

print. The Booklet clearly sets out the “Benefit Reduction” on an employee’s 65^th

birthday. Since the Booklet stopped being handed out in 2013, copies have been made

available to anyone who asked for them and information about the policy has been

available to employees on the Sun Life website. Further, the Employer periodically

issues information “pamphlets” to employees that are available in the Human

Resources offices at the worksites. Accordingly, the Employer takes strong objection to

the Union raising this challenge to the payment reduction after the Collective Agreement

has been negotiated for decades without any request for changes to Article 35.

To support this estoppel defence, the Employer relied on the evidence of Marc

Tremblay. He was the Union’s Coalition Leader in contract negotiations for three years

in the early 1990’s before he became the Employer’s Labour Relations Superintendent

in Kapuskasing in 1997 and the Manager for Woodland Operations. Eventually, he

became the Company’s Labour Relations Manager for Canada and the USA. He

testified that the Union members have always had access to the Sun Life Booklet and

were aware or should have been aware of the payment reduction at age 65 for decades.

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Mr. Tremblay’s evidence was echoed by Monica Epp. Ms. Epp was the Employer’s

Accounts Payable and Payroll Supervisor and has become the restructured Company’s

Global Retirement and Benefits Manager. She pointed out that the reduction of the life

insurance payment at the age of 65 has been in place since at least year 2000. She

also said that copies of the Benefit Booklet were available in the HR offices, and that the

Company provides information that instructs employees about how to access

information concerning their benefits via the internet, telephone or in written format.

Further, the Employees’ Service Centre can advise employees about their benefit

entitlements. However, she conceded that the summary pamphlets that the Employer

provides to employees do not mention a reduction of the life insurance payment after

one’s 65^thbirthday.

Karen Filion is the Human Resources Coordinator at the Kapuskasing site. She has

worked at the Kapuskasing site since 2011. She testified that employees used to be

given the Booklet when they were hired. However, since 2013 new employees were

told how to access Sun Life’s website for information about their benefits. Further, if

employees did not have access to the internet, her office would or could assist them.

She also said that she would have printed out a copy of the Booklet if anyone asked for

it. Ms. Filion recalled several occasions when Mr. Paquette did ask for a copy of the

Benefit Booklet. While she could not recall giving him a copy, she insisted that there

was no reason why she would not have given one to him.

B. The Parties’ Submissions regarding Life Insurance

Note: The Parties presented extensive submissions on the impact of the Charter

with respect to the grievances concerning Life Insurance and LTD coverage for

employees who are 65 and older.

However, since the Life Insurance entitlement has been decided on the basis of the

Collective Agreement’s interpretation, the Charter submissions are not addressed

in this part of this Award.

Instead, the Charter submissions and analysis are addressed in detail below as

they pertain to the LTD grievances.

The Submissions of the Union

The Union submitted that the “clear wording” of Article 35 mandates that the estate of

any active employee, regardless of the age at death, receives twice the annual salary

as the Life Insurance benefit. The Union pointed out that Article 35 does not mention

any reduced payout for employees who are 65 or older. Further, it was stressed that

unlike the provisions for LTD in Article 37, Article 35 does not append the Sun Life

policy text or incorporate it into the Collective Agreement. It was also stressed that

Article 35(a) does not mention that the benefit is subject to any policy or plan. It was

argued that specific language is required to create a differentiation in eligibility for

benefits. In support of this, the Union relied on SEIU and Bluewater Health, [2019]

O.L.A.A. No. 90 (Nyman); Brown & Beatty 8:39 – Qualifying for Sickness and Disability

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Benefits – Health Insurance Policy Restrictions; Strathroy-Caradoc Police Assn v.

Strathroy-Caradoc (Municipality) Police Services, 2012 CarswellOnt 7635 (Cummings);

London Civic Employees Local 107 v. London (City), 2010 CarswellOnt 6719

(Etherington); Scarborough Hospital and CUPE Local 1487 (Employee Health and

Welfare Benefits), 2014 CarswellOnt 15712 (Goodfellow); Canadian Union of Public

Employees, Local 1999 v. Markham Stouffville Hospital, 2018 111617 (Trachuk);

and Brockville Mental Health Centre v OPSEU, [2016] O.L.A.A. No. 387 (Knopf).

Anticipating the Employer’s arguments, the Union asserted that capitalizing the word

“Plan” in Article 35(c) is insufficient to negate Article 35(a) or to incorporate Sun Life’s

policy into the Collective Agreement. It was suggested that the only purpose of Article

35(c) is to ensure that information would be sent to employees semi-annually. Pointing

out that this has not been done for years, the Union argued that the Employer should

not be allowed to rely on Article 35(c) to modify the wording of Article 35(a).

Addressing the Employer’s estoppel argument, the Union agreed that it has never made

a claim such as this before, nor has it ever asked for a change to Article 35(a)’s wording

during bargaining. However, the Union submitted that the evidence supports a finding

that the Union had no knowledge of the payout reduction at age 65 in the Sun Life Policy

before the Grievor’s situation came to light. It was stressed that it has been rare for

people to continue working after they turn 65 and that this Grievor is the first employee

to the Union’s knowledge who has not received the full benefit of Article 35(a).

The Union also argued that the equitable defence of estoppel should not apply against

the Union because it raised the question of the issue with the Employer as soon as it

became aware of the Grievor’s situation during the period of this Collective Agreement’s

term, giving the Employer the opportunity to seek to amend Article 35(a) in the contract’s

renewal negotiations. Since no such request was tabled, it was suggested that the

Employer should not be able to argue “detrimental reliance”. In support of these

submission, the Union relied upon Tri-Krete Ltd. v. LIUNA, Local 506 (Nazarian

Grievance), [2010] O.L.A.A. No. 387 (Monteith); Unifor Local 777 and Air Liquide Canada

Inc., 2021 CarswellAlta 182 (Bartel); BC Ferry Service Inc. v. BC Ferry and Marine

Workers’ Union, [2013] B.C.C.A.A.A. No. 14 (Korbin); and Brown & Beatty 2:38 – Court

of Competent Jurisdiction.

Accordingly, the Union argued that the Grievor’s estate is entitled to the full benefit of

Article 35(a).

The Submissions of the Employer

The Employer’s primary defence to the Life Insurance claim is based on the equitable

doctrine of estoppel. It was stressed that the Sun Life Insurance Policy has been in

place for over two decades without the Union ever questioning the age reduction, filing

any grievances or raising the issue in bargaining. Based on this, the Employer argued

that the silence on this issue amounts to a representation that the Union was content

with the terms of the Sun Life policy that has been provided. The Employer suggested it

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is “inconceivable” that the Union could remain unaware that the life insurance payments

reduced at 65, pointing out that all employees were either given the Sun Life Booklet or

had access to policy information via various sources. Further, it was stressed that the

Union’s Local President said the Union was aware of the terms of the benefits during

negotiations. However, it was acknowledged that Mr. Paquette never said that he knew

about the reduction of life insurance payments based on the age 65 factor.

In the alternative, the Employer argued that Article 35 should be read in its entirety to

lead to the conclusion that the capitalization of the word Plan in subsection (c)

incorporates the Sun Life Plan into the Collective Agreement. It was suggested that this

indicates that the Parties have always understood that the Employer would provide life

insurance in accordance with the “Sun Life Plan”. Therefore, it was argued that the

Parties have always intended the Collective Agreement and the Booklet or “Plan” to be

read together, so that the Booklet should be used as an aide in the interpretation of the

provision. In support of this the Employer relied on Brown & Beatty 2:47 – Estoppel –

The Doctrine – The Basic Elements – Canadian Labour Arbitration, 5^thed.; Brown &

Beatty 4:7 – Form and Content of the Collective Agreement – Pension, Insurance and

Welfare Plans – Introduction, Canadian Labour Arbitration, 5^thed.; Agassiz School Div.

No. 13 and Agassiz Teachers’ Assn. of the Manitoba Teachers’ Society [1997] M.G.A.D.

No. 61 (Graham); Manitoba (Department of Family Services & Housing) v. C.U.P.E.,

Local 2153 [2005] M.G.A.D. No. 55 (Peltz); M.A.H.C.P. v. Nor-Man Regional Health

Authority Inc., 2011 SCC 59; Sabhi and Bombardier Inc., 2012 HRTO 2302; and Barker

v Molson Coors Breweries and another (No. 3), 2019 BCHRT 192.

C. The Decision on Life Insurance

When mandatory retirement at the age of 65 was in place, no employers worried about

providing benefits after that milestone. When mandatory retirement was abolished in

2006, many situations arose where collective agreements had to be interpreted to

determine whether the pre-existing benefit packages would be available for employees

who chose to continue working after the age of 65. In those situations, the arbitrators’

first responsibility became the task of interpreting the parties’ collective agreement. To

that end, the basic rules of contract interpretation were applied. They required an

arbitrator to examine the words of the collective agreement in context, to give them their

plain and ordinary meaning and to ensure that they can be read harmoniously with the

scheme of the entire contract. This was ably articulated by Arbitrator Cummings when

she adopted the approach taken in City of London, supra:

16. ….The amendments to the Human Rights Code ended the requirement that

employees retire at age 65. The amendments permitted employers to maintain

benefit plans that provided different (or no) benefits to employees who continued

to work past 65 years old. In the collective bargaining context, arbitrators have

to figure out whether the union and the employer have negotiated a benefit plan

that differentiates between employees who are older than 65 years.

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17. ….I should not readily find an intention to discriminate on the basis of age. I

should look for "clear and unambiguous language" to find an intention to provide

lesser benefits to employees who work after age 65. The reasons behind that

principle are obvious. Employees who work after age 65 provide the same labour

as they did when they were 64 years of age and should be compensated in the

same way. [Strathroy Police Services, supra]

These paragraphs point out that since the abolition of mandatory retirement, it has been

up to the parties to adapt their collective agreements to specify any differentials in

benefits based on age. In other words, there would no longer be an assumption that

benefits would cease, or be different, based on age. Any differential had to be found in

the wording of the contract. Further, if there was to be a difference, it had to be made

clear in the parties’ contract.

Article 35(a) makes no clear mention of reducing the life insurance benefit at age 65. It

is like the dental, Sickness and Accident, glasses and other benefits provisions that do

not specify age as a factor for entitlement. The Parties could have specified a

differential in life insurance payouts at age 65. They have done so in Article 37 that

specifically incorporates the LTD Plan into the Collective Agreement in Appendix B,

para. 6(c). That sets out clearly that LTD ceases at age 65 [see page 12 below]. Simply

capitalizing the word ‘Plan’ in Article 35(c) is not sufficient to incorporate the wording of

the Sun Life plan or policy or its details into the Collective Agreement. Article 35(c) is

directed at an entirely different purpose. Its purpose is to ensure regular distribution of

information regarding coverage. It is a procedural, rather than a substantive, provision.

The fact that Article 35(a) is so different from Article 37 and Appendix B indicates that

where the Parties have chosen to make age a factor for benefit entitlement, they can

and have done so in clear and unambiguous terms. Further, where they have chosen

to incorporate a plan or a policy into their Collective Agreement, they have done that

explicitly. The fact that they have not done that for Life Insurance means that Article

35(a) must be read to provide what it promises. Therefore, the Collective Agreement

must be interpreted to mean that the estate of any active employee who dies is entitled

to a life insurance payment of two times the deceased employees’ annual salary,

regardless of age at the time of death.

The only difficult question in this aspect of the case is whether the Union is now

estopped from asserting this claim because it never did so during two decades of

collective bargaining.

The elements of estoppel are now well recognized. Principally, there must be some

conduct, promise or inaction that induces the other party to believe that the strict legal

rights or application of a contract will not be enforced or will be kept in suspense.

Further, there must be a finding that it would be inequitable to allow that party to enforce

their strict legal rights, [see Agassiz School Div. No. 13 and Agassiz Teachers’ Assn. of

the Manitoba Teachers’ Society, supra].

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An arbitrator’s authority to apply the doctrine of estoppel was recognized and explained

by the Supreme Court of Canada in Nor-Man Regional Health Authority, supra:

[45]

. . . labour arbitrators are authorized by their broad statutory and

contractual mandates ― and well equipped by their expertise ― to adapt the

legal and equitable doctrines they find relevant within the contained sphere of

arbitral creativity. To this end, they may properly develop doctrines and fashion

remedies appropriate in their field, drawing inspiration from general legal

principles, the objectives and purposes of the statutory scheme, the principles of

labour relations, the nature of the collective bargaining process, and the factual

matrix of the grievances of which they are seized.

[46]

This flows from the broad grant of authority vested in labour

arbitrators by collective agreements and by statutes . . .

[47]

The broad mandate of arbitrators flows as well from their distinctive

role in fostering peace in industrial relations (Toronto (City) Board of Education v.

O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487

(“O.S.S.T.F., District 15”), at para. 36; Parry Sound (District) Social Services

Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R.

157, at para. 17).

[48]

Collective agreements govern the ongoing relationship between

employers and their employees, as represented by their unions. When disputes

arise — and they inevitably will — the collective agreement is expected to

survive, at least until the next round of negotiations. The peaceful continuity of

the relationship depends on a system of grievance arbitration that is sensitive to

the immediate and long-term interests of both the employees and the employer.

This citation underscores the Supreme Court’s appreciation of the collective bargaining

relationship and the importance of the grievance process. If one party has knowledge

of an issue or a conflict arises, it can and must be dealt with through the grievance

process. That allows the parties to address and resolve the dispute. Further, if the

difference involves the understanding or application of the language of the collective

agreement an arbitrator has the authority to interpret the wording and enforce it, or to

suspend its application during the term of the contract if one party has never raised the

issue in the past or sought a different interpretation.

Of most importance to the case at hand, the application of the doctrine of estoppel

against a union also requires an examination of whether there is evidence that a

member of the union hierarchy who had some responsibility for the enforcement or

administration of the contract had knowledge of or acquiesced in the provision it now

seeks to enforce. However, a union should not be assumed to have knowledge of

information that may be known by individual members for purposes of establishing

estoppel (see John Bertram and Sons, (1967) 18 L.A.C. 362 (Weiler), cited in Unifor

Local 777 and Air Liquide Canada, supra). That concept is consistent with the following

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advice from Arbitrator Weatherill quoted in Manitoba (Department of Family Services &

Housing) v. C.U..PE., Local 2153, supra:

The doctrine [of estoppel] when applied to prevent a party from advancing an

argument based on the plain meaning of the words of a Collective Agreement,

must surely be applied with the greatest of care. Its affect, in the result, is a

determination that the parties really agreed to something different from that set

out in the Collective Agreement.

It is clear that the Sun Life Insurance policy the Employer has provided for these

employees has been in place for decades. The Parties have gone through several

successive rounds of collective bargaining wherein they discussed many aspects of the

benefits package, agreeing upon changes and improvements, but never addressing the

fact that the Life Insurance benefit reduces dramatically on an active employee’s 65^th

birthday. That reduction is made clear in the Benefits Booklet that is no longer being

printed, but not in the Collective Agreement or the pamphlets now being provided to

employees.

If the evidence supported a finding that the Union or a Union official was aware of the

Life Insurance payment reduction at age 65 during the last two decades and failed to

object, that would establish one critical element of the estoppel. That is because the

Union’s silence or inaction has led the Employer to rely on its understanding that the

Life Insurance Policy it maintains has been acceptable to the Union. To find out in the

middle of the term of the Collective Agreement that the Union wants to rely on the strict

wording of Article 35 has deprived the Employer of the opportunity to either find another

insurance provider or to seek changes in the article over the years of successive

negotiations.

Therefore, the critical question in this aspect of the case is whether the Union was

aware or should have been aware of the Life Insurance payment reduction at age 65.

The evidence established that this issue never arose between the Parties before the

Grievor became critically ill. This may be because no other active employee over the

age of 65 passed away. Since 2013, the Booklet was no longer being printed, but the

Human Resources office was willing to give insurance information to anyone who

asked, including issuing pamphlets that summarized the Sun Life Plan or even printing

out copies of the Booklet. Alternatively, information was available through employees’

individual portals to the Sun Life website. As a result, someone who knew where to

look or had an interest in clarifying the details of the Life Insurance entitlement beyond

the wording of Article 35 might have discovered that the Sun Life Plan created a

significant difference in payouts at age 65. However, neither the information available

to individuals on their portals nor in the pamphlets specified the payout reduction at age

65. An employee who did not have a copy of the Booklet would have had to dig much

further to discover the reduction language.

The two Union officials who testified swore that they had no knowledge about the

reduction because up until the Grievor’s inquiry, no other active employee over the age

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of 65 had sought clarification of their rights or died. Should the Union officials have

known or made themselves aware of the age factor? There is no suggestion that they

were willfully blind. Further, Mr. Paquette testified that he had made several attempts to

obtain a copy of the Booklet once he became President of his Local, but none of his

attempts ever came to fruition. While the Employer’s witnesses honestly believed that

he must have known and/or that he must have received a copy of the Booklet, Mr.

Paquette’s evidence was credible. The fact that the responses to the Grievor’s inquiries

came as a shock to the Union gives credence to his testimony.

On the basis of all this evidence, I am prepared to conclude that at all relevant times, no

Union official was aware of the reduced entitlement. This leads to the question of

whether the Union’s inaction due to unawareness creates an estoppel. Manitoba

(Department of Family Services & Housing) v. C.U.P.E., Local 2153, supra, was a

situation where there had been a longstanding way of calculating holiday pay and there

was no reason for union officials to turn their minds to the issue. The arbitrator said that

“their personal circumstances and habits cannot be determinative of the issues”

between that union and that employer [see para. 35]. Relying on a host of arbitral

authorities, it was concluded that where the information was readily available to union

officials over a number of years, the employer could rely on that union’s acquiescence

to the way the contract had been administered. In other words, knowledge of a regular

pay practice was imputed to a union when it could or should have been aware of an

employer’s application of an article over a series of years and a series of contracts.

However, the factual context of the case at hand is very different. This was not a

situation where the Parties ever before had to face a Life Insurance payment for an

active employee who was over 65. More like the case of BC Ferry Service and BC

Ferry and Marine Workers’ Union, supra, this was a “one off” situation. There was no

reason for this to be on the Union’s radar before the Grievor made his inquiries.

Perhaps if there had been compliance with Article 35(c) regarding individual employees’

entitlement to coverage, the Union could have been imputed with knowledge. However,

the long term failure to comply with Article 35(c) cannot be ignored.

Further, this was not a situation where the Employer had a practice that the Union

should have known about. This was the first case of this nature. As Arbitrator Weatherill

advised, the doctrine of estoppel “must be applied with the greatest of care” when it is

being invoked to modify or to override the clear wording of the collective agreement. As

a principle of fairness in labour relations, an arbitrator must be respectful of collective

bargaining and also be careful about imposing something different from what the parties

agreed to in their collective agreement.

In this case, as found above, the Parties agreed that the Employer would provide

group life insurance coverage that would be two times the annual earnings to active

employees. The Policy that the Employer purchased does that for all active employees,

until they reach the age of 65. That policy deprives older active employees of the same

benefit that is available to younger employees and is therefore in violation of the plain

wording of Article 35(a). Since the evidence leads to the conclusion that the details of

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the Life Insurance reduction at age 65 was not understood or known to Union officials

and did not come to the attention of a responsible Union official prior to the

circumstances which led to the filing of these grievances, it would be unfair or

inequitable to conclude that an estoppel arises that prevents the Union from relying on

the clear meaning of Article 35(a).

As a result, the Union’s policy and the individual grievance with regard to Article 35(a)

are upheld. The Employer is therefore ordered to provide the Life Insurance payment

promised in Article 35(a). I remain seized regarding implementation should the need

arise.

PART TWO – THE LONG-TERM DISABILITY CLAIM

A. Introduction

This aspect of the Award addresses the Union’s policy grievances with respect to the

Long Term Disability coverage that is not available to employees who are 65 or older.

The Ontario Human Rights Code and/or the Employment Standards Act “carve out” LTD

plans from the prohibitions against age discrimination with respect to employment.

However, the Union asserts that the “carve out” contravenes s. 15(1) of the Canadian

Charter of Rights, thereby challenging the Employer’s principle defence in this case.

The Collective Agreement provides:

37.00 LONG TERM DISABILITY INSURANCE

Effective January 1st, 2000, the Company will fund a long-term disability plan to

provide a benefit of 55% of earnings with a maximum of $2,300. For all new

cases beginning on or after October 1st, 2004, the maximum will be increased to

$2,400. For all new cases beginning on or after November 1st, 2017, the

maximum will be increased to $2,800. Plan text as per industry.

Note: For plan text see appendix "B"

APPENDIX "B" LONG TERM DISABILITY BENEFIT PLAN

The Long Term Disability Benefit Plan shall be administered in accordance with

the terms of an insurance policy and shall contain the following governing

provisions: . . .

5. AMOUNT OF BENEFIT

a) . . . For all new cases beginning on or after November 1, 2017, the maximum

will be increased to $2,800. . . .

6. DURATION OF BENEFITS

Benefits shall cease upon the occurrence of any one of the following:

11

a) On the date the employee ceases to be disabled; or . . .

b) On death, or

c) On the earlier of retirement or age 65.

[emphasis added]

The statutory framework for the LTD issue is as follows:

Human Rights Code, RSO 1991, c. H. 19

Employment

5 (1) Every person has a right to equal treatment with respect to employment

without discrimination because of race, ancestry, place of origin, colour, ethnic

origin, citizenship, creed, sex, sexual orientation, gender identity, gender

expression, age, record of offences, marital status, family status or disability.

Employee benefit and pension plans

25 (2.1) The right under section 5 to equal treatment with respect to employment

without discrimination because of age is not infringed by an employee benefit,

pension, superannuation or group insurance plan or fund that complies with

the Employment Standards Act, 2000 and the regulations thereunder.

25 (2.2) Subsection (2.1) applies whether or not a plan or fund is the subject of a

contract of insurance between an insurer and an employer.

25 (2.3) For greater certainty, subsections (2) and (2.1) apply whether or not

“age”, “sex” or “marital status” in the Employment Standards Act, 2000, S.O.

2000, c. 41 or the regulations under it have the same meaning as those terms

have in this Act.

Employment Standards Act, 2000, S.O. 2000, c. 41

Differentiation prohibited

44 (1) Except as prescribed, no employer or person acting directly on behalf of

an employer shall provide, offer or arrange for a benefit plan that treats any of the

following persons differently because of the age, sex or marital status of

employees:

1. Employees.

2. Beneficiaries.

3. Survivors.

4. Dependants.

12

Causing contravention prohibited

(2) No organization of employers or employees and no person acting directly on

behalf of such an organization shall, directly or indirectly, cause or attempt to

cause an employer to contravene subsection (1)

Ontario Reg. 286/01

Definitions

1. For the purposes of Part XIII of the Act and this Regulation,

“actuarial basis” means the assumptions and methods generally accepted and

used by fellows of the Canadian Institute of Actuaries to establish, in relation to

the contingencies of human life such as death, accident, sickness and disease,

the costs of pension benefits, life insurance, disability insurance, health

insurance and other similar benefits, including their actuarial equivalents;

“age” means any age of 18 years or more and less than 65 years

Disability benefit plans, permitted differentiation re age, sex or leave of absence

8. The prohibition in subsection 44 (1) of the Act does not apply to,

(a) a differentiation, made on an actuarial basis because of an employee’s age or

sex, in the rate of contributions of an employee to a voluntary employee-pay-all

short or long-term disability benefit plan; and

(b) a differentiation, made on an actuarial basis because of an employee’s age or

sex and in order to provide equal benefits under the plan, in the rate of

contributions of an employer to a short or long-term disability benefit plan.

Charter of Rights and Freedoms

1 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.

Equality before and under law and equal protection and benefit of law

15 (1) Every individual is equal before and under the law and has the right to the

equal protection and equal benefit of the law without discrimination and, in

particular, without discrimination based on race, national or ethnic origin, colour,

religion, sex, age or mental or physical disability.

Primacy of Constitution of Canada

52 (1) The Constitution of Canada is the supreme law of Canada, and any law

that is inconsistent with the provisions of the Constitution is, to the extent of the

inconsistency, of no force or effect.

13

The issues to be determined are whether Article 37 is discriminatory on the basis of age

and in violation of s. 15(1) of the Charter or whether it is saved by s. 1. The Employer has

also raised an estoppel defence. The evidence presented gives context to the Parties’

positions and is critical to the application of the Charter.

B. The Evidence

i)

The Expert Witnesses

The Union’s allegation of discrimination relies, to a great extent, on the testimony of Dr.

Birgit Pianosi and her report titled “Ageism in the Workplace”, dated July 14, 2021

(Report). Dr. Pianosi is a Professor of Gerontology, with a Ph.D. in Psycho-Gerontology.

She also practices as a credentialled Gerontologist. Gerontology is an inter-disciplinary

field, encompassing the social, psychological, and biological aspects of aging, age and the

aged. Dr. Pianosi’s professional and academic achievements, her research projects and

her work in the community are extensive and impressive. Her Report is based on

scientific, peer-reviewed literature. The purpose of her evidence was to explain “ageism”

and its impact on society and workplaces. Her expertise in this field was accepted.

Dr. Pianosi acknowledged that there are some positive attitudes towards older people in

society. Some people perceive older folk to be:

 more sincere, kind and trustworthy

 more reliable, committed/loyal

 warm, experienced and knowledgeable

 having a strong work ethic

 more skilled socially and interpersonally

However, Dr. Pianosi testified that there are negative stereotypes, attitudes and

disadvantages that older workers face, such as assumptions that they are:

 less competent

 less skilled

 less intelligent

 too old to use technology

 lower mental capacity

 resistant to change

 less willing to participate in training or career development

 less motivated

 less healthy

 vulnerable to work-life balance

 more costly

 not worth training

 take jobs away from other workers

14

Dr. Pianosi opined that these negative stereotypes have resulted in older workers

experiencing difficulties in securing health insurance or benefit coverage through their

employment or other channels. She believes that there is no research evidence to support

the commonplace belief that older workers are in poor health or are more likely to access

health related benefits.

Dr. Pianosi pointed out that although legislative provisions and programs operate on the

expectation that people will retire at age 65, she suggested that this is no longer an

appropriate assumption because the average Canadian now lives until the age of 82.1 and

this life span is expected to increase. This is the result of advances in medicine and the

fact that the “baby boomer’ generation has paid more attention to proper diet and exercise

than people who are now over the age of 70 and who grew up in more challenging

circumstances. Further, she said that people now have a more positive attitude to work/life

balance and improved social networks. She predicted that future generations may be

even healthier, but less financially secure than the current population, resulting in them

needing or wanting to work longer in order to make longer contributions to society.

Dr. Pianosi suggested that using the age of 65 as the basis for social policies related to

pension and Old Age Security amounts to “ageism” because it is based on prejudicial

attitudes towards older people and the aging process. She testified that individual,

organizational and societal “ageist” attitudes assume that people will or should retire or

stop working at the age of 65 because of diminished mental or physical capacity. She

testified, “We see aging as a downfall.” However, she asserted that her research leads to

the conclusion that “age does not influence a person’s cognitive capacity or his/her ability

to perform routine or repetitive tasks. . . . [W]orkers who perform the same tasks over

many years are proud of their level of mastery, as well as enjoy the associated benefit of

accumulated work experience.” When asked whether “mandatory retirement” for

Canadian judges at age 75 tells us anything about “cognitive decline”, she replied, “No, it’s

arbitrary. It’s not based on fact.”

Dr. Pianosi described ageism as the “most tolerated form of social prejudice”. She also

quoted a Federal/Provincial/Territorial Ministers Responsible for Seniors Report (2018) as

identifying ageism as “one of the five challenges facing older Canadians in the workforce”.

Nevertheless, she pointed out that Canadians are increasingly choosing to remain in or re-

enter the workforce. In fact, the number of workers over 55 is now almost equal to the

number of younger workers aged 25-34. She also explained that many Canadians who

could retire choose not to for reasons that may be more than financial, but instead relate to

their desire to remain active, to make further contributions to society or the workplace, or to

supplement their pension incomes.

Dr. Pianosi opined that it is “ageist” to say that people are expected to retire at 65.

Further, she cautioned that one should not assume that people over the age of 65 will no

longer depend on employment income. She pointed out that women are often unable to

afford to retire. However, she acknowledged that the ability to access a pension affects

one’s ability to retire and that people with “secure income” tend to retire so that they can

15

enjoy life. Alternatively, she noted that there is a trend for older people to stay in the

workforce on a part-time basis because of the flexibility it offers. She also agreed that

someone’s decision about retirement can depend on the nature of their work and the

workplace, as well as their finances and personal circumstances.

Dr. Pianosi challenged the notion that older workers are more susceptible to injury or illness

or have greater instances of disability. While she admitted that she found it difficult to find

data on that point, she questioned whether the assumption was based on fact or on

ageism. While she did concede that there is no literature setting out the incidence of

disability for workers over 70, she believes that it is not reasonable to expect rates of

disability to increase considerably as workers age towards their life expectancy. However,

she admitted that she was unaware of any insurance carriers or brokers who offer LTD for

the life of a worker.

In cross-examination, Dr. Pianosi also conceded that she has not studied the

demographics, opinions or working conditions of the members of this Union’s bargaining

units or this workplace. Her expert evidence was focused instead on the impact of

“ageism” on the situations facing older workers in our society.

Like the Union’s expert, the Employer’s expert, Joseph Nunes, did not study this

workforce. Mr. Nunes is an actuary whose professional practice focuses on the design of

retirement and health benefit plans for retirees. His expertise in these areas was accepted.

He also has experience in the pricing of LTD plans and life insurance plans, but his

expertise in these areas was not accepted by the Union. However, I am satisfied that his

professional qualifications as an actuary and his knowledge of insurance plan design are

sufficient to qualify him as an expert who is able to opine upon the impact of extending

LTD payments to employees over age 65, based on publicly available data.

Mr. Nunes explained that LTD plans are designed to indemnify employees for loss of

employment income due to an injury or illness that prevents them from continuing to work.

The amount of LTD coverage normally provided to employees is less than 100% of their

income for two reasons. First, it is assumed certain work-related expenses are no longer

incurred with a disability. Secondly, the LTD payments are designed to create an incentive

to return to work. Mr. Nunes did not find any insurance provider that offers LTD coverage

with no age cap. He testified, “It doesn’t make sense to provide LTD benefits for life if it is

intended to replace employment income.” He explained, “most people don’t work until

they die”. Therefore, he opined that the “best design” for an LTD plan is one that specifies

an age for the cessation of LTD coverage. In his opinion, 65 is an “appropriate age” to cut

off LTD coverage, given the financial “safety net” available to Canadians through CPP and

OAS, and it is consistent with the available data pertaining to retirement experience that

has been tracked by actuarial and government sources. He explained that this is why LTD

benefits “commonly” cease at 65 when employees are “reasonably expected to retire and

no longer depend on employment income”.

Mr. Nunes also testified that the cost of an LTD plan is based on insurers’ estimates of the

probability that a worker will suffer a disability that will result in a long term absence from

16

work and the duration of the disability during which payments would be made. The actual

rates of incidence of disability, recovery and mortality vary depending on the nature of the

workplace and the workforce. Insurance companies use this data to underwrite disability

policies. Specific industry and workplace data is proprietary and not available publicly.

Accordingly, relying on publicly available data about Canadian rates of disability, recovery

and mortality, Mr. Nunes estimated that the cost of disability insurance with no age limit for

a 40-year-old worker would be 14% higher than the cost if the payments stopped at age

65. Similarly, he estimated that the cost of insuring a 60-year-old worker with no age limit

would be approximately 129% more than the cost if the payments stopped at age 65. Mr.

Nunes explained that insurers are unwilling to assume the risk of underwriting policies for

older workers because their data convinces them that older workers are “increasingly

susceptible to injury and illness”. He further explained that extending the age for LTD

coverage beyond the age of 65 would increase the cost of insurance for all employees in

order to provide the benefit for the small percentage of employees that might become

disabled and be reasonably expected to work past age 65.

Mr. Nunes also pointed to the 30^thCPP Actuarial Report as of December 2018 showing

that one-quarter of employees elect to start their CPP retirement benefits at age 60 and

that fewer than 10% wait until they are 65 or older. From this, he opined that it is

“reasonable” to use the age of 65 as the age at which most people can be expected to

cease full-time employment. However, he also acknowledged that Statistics Canada has

tracked that the number of “seniors” who continue working has been increasing from 14%

to close to 20% between 1980 and 2015, with 5% working on a full-time basis and the

majority working part time. Most significantly, he agreed that seniors without private

retirement income are the one’s who are more likely to continue working. As Mr. Nunes so

aptly commented, “Some work beyond 65 because of the joy of it. Others do it because of

economic need.”

Mr. Nunes suggested that offering LTD to older employees would introduce a “moral hazard

where employees wishing to retire might instead choose to attempt to claim disability

benefits.” The Union objected to this evidence as being beyond Mr. Nunes’ area of

expertise. Mr. Nunes clarified that he based these opinions on research relating to incidents

of “hard to diagnose medical conditions”, but not on any age-related data. Further, he

admitted that he was unaware of any publications on the incidence of disability for

employees who are over 70. It was also pointed out to him that this opinion is inconsistent

with this Employer’s record of disability claims in these bargaining units. Accordingly, this

aspect of his testimony and report has not been relied upon in this Award.

ii)

The Contextual Evidence

The potential financial impact on the Employer of the Union’s claim for LTD coverage for

employees who are 65 or older was explained by Mark Benoit, the VP of Business

Development for the Cowan Insurance Group (Cowan). He oversees Cowan’s Group

Benefits Division that provides brokerage advice to this Employer.

17

Mr. Benoit testified that his company deals with hundreds of insurers and benefit plans. He

said that even after mandatory retirement was eliminated in 2006, 99.9% of insurers still

only provide LTD coverage up to the age of 65. He said that he has never seen an LTD

plan that covers workers over the age of 70. He explained that this is due to insurers’

assessment of “risk”, from data indicating that “as employees get older, the risk of disability

gets higher”. He also said that insurers are simply not willing to set aside the amount of

government mandated reserves that would be necessary to provide coverage for such

claims. He testified that his industry’s analyses of claims suggest that when workers

become disabled in their early 40’s, their likelihood of returning to work is greater than for

someone who is injured at the age of 58, whose recovery might be slower and who might

remain off work longer.

Mr. Benoit was asked by the Employer to obtain quotes for the cost of LTD coverage for

the Union’s two bargaining units for active workers 65 and older. He testified that Sun Life

was the only insurer that would provide a quote for such LTD coverage, but only on the

basis of benefits being payable to 65, or for two years if older, whichever is greater, and

with a cap at 70. Sun Life advised that any further level of LTD coverage would be “cost

prohibitive”. The quote that was provided, based on this Employer’s claim history, is that

the LTD premiums would increase by $80,000 or a factor of approximately 10% per year.

In cross-examination, Mr. Benoit agreed that if this kind of LTD coverage were included in

the benefit package available under this Collective Agreement (without considering

vacations), it would amount to a 2.5% increase in overall benefit costs to this Employer.

To put this in the context of the Parties’ collective bargaining history, Mr. Tremblay

explained that as a negotiation strategy, the Employer has not been willing to increase

any benefits without the Union agreeing to “co-pay” or make concessions in other areas.

As a result, this Employer has negotiated three-year agreements in the past with 0%

cost increases. He testified that the Employer has always rejected any Union demands

that would “shut down the Mill”. When he was shown Cowan’s quote for the increased

LTD coverage at issue in this case, he suggested that the increased cost could

“possibly” jeopardize the Company’s financial viability. However, no financial

information was filed to support that claim. Cross-examination aimed at putting his

fiscal concern in the context of the fact that Rayonier’s operations were sold recently

along with a series of other mills to a larger enterprise in a package estimated to be

worth approximately $220M.

The Employer’s evidence was also provided to explain how the LTD Plan operates in

conjunction with the pension plan available to employees under the Collective Agreement.

The Retirement Plan defines the “normal retirement age” as 65 and provides an

unreduced or “defined benefit” available at age 65, or at 58 with 30 years of eligible

service. It also provides eligibility to retire with a reduced pension at age 55 with a

“bridge” as follows:

The monthly amount of the Bridge Benefit payable is:

18

i)

$500 if such Member commences receiving an Early Retirement Pension

on or after the later of attainment of age 58 and completion of 30 years of

Eligibility Service; or

ii)

$42,000 divided by the total number of months from commencement of

the Early Retirement Pension to the first of the month prior to the

Member’s attainment of age 65 inclusive, provided the Member has

attained age 55 and completed 30 years of Eligibility Service; or

iii)

$20 if such Member does not qualify under Subsections (i) or (ii), reduced

pro-rata based on the Member’s Eligibility Service if such Member has

less than 15 years of Eligibility Service.

Since 2011, the average age of retirement in this workforce is 60. From 2011 to 2019,

the vast majority of the retirements were in people below the age of 65, with their

average ages ranging from 59 to 61. For the first time in 2020, three employees retired

who were over the age of 65, representing 13% of the total retirees that year.

Ms. Epp provided the following chart setting out the effect of the Retirement Plan coupled

with Government income security benefits available to employees in comparison to

potential LTD income for seven actual employees who were close to the age of 65 or

older:

Monthly Income potential – calculated as of June 2021 – assuming LTD available after 65

Employee Age Leave Type LTD

Pension Bridge

Until 65

Life Annuity

(with Bridge) (with CPP &OAS)

Life Annuity

1. Those who elected to retire

A

B

C

D

64.2

64.7

64.3

64.9

LTD

$2,800.00

$ 240.00

$6,000.00

$1,658.29

$2,881.54

$3,212.80

$2,356.69

$3,463.29

$4,206.54

$4,537.80

$3,106.69

$2,800.00

$2,088.75

2. Those who continue to work

E

F

G

65

68

65

-

$2,800.00

$6,000.00

$4,327.89

$3,942.85

$1,315.53

$5,652.89

$5,766.85

$3,140.53

-

Ms. Epp asserted this information illustrates that employees who are 65+ could receive

more money by retiring than if they transitioned from LTD to their pension and draw their

CPP and OAS entitlements. In cross-examination, Ms. Epp was asked if the cessation of

LTD coverage at age 65 essentially “forces” injured workers to retire in order to continue

receiving any income. Ms. Epp disputed that, asserting that retirement remains an

employee’s choice. She said that she has never seen an example of an employee who

was receiving LTD benefits who has not elected to retire.

19

In response, Mr. Paquette pointed out that this chart only applies to employees entitled to

their full retirement pension. Some employees, like him, will not have enough service to

get a full pension at age 65. Given when he started with this Company, he will not be able

to get his full pension until he is 67. He said that a disability could trigger his retirement

earlier than he might have planned.

Mr. Paquette also clarified that although the grievances initially sought “equal benefits”

for all employees, the Union is no longer seeking the removal of an age cap on LTD

coverage for active members. He said, “We’re only asking for a discussion to meet

somewhere along the way. It’s not feasible to have people on LTD indefinitely.”

iii)

Estoppel Issue

The Employer raised an estoppel defence to the policy grievances concerning LTD,

complaining that it increased the LTD monthly payments from $2,400 to $2,800 in the

last round of bargaining and now finds itself being accused of discrimination for a plan

that was agreed upon by this Union.

Luc Audet, the President of Local 89, was candid about why the policy grievances

concerning LTD had not been filed before 2019. Agreeing that it was the Grievor’s

circumstances that brought the issue to light, he also admitted the Union had just

become aware of the Ontario Human Rights Tribunal’s ruling on the issue of age

discrimination with respect to differential benefits for employees over the age of 65. He

conceded that the Union chose to ratify the Collective Agreement in its present form and

to fight for additional coverage for workers over 65 years of age through this arbitration

process.

Given the conclusions reached below and the dismissal of the two Locals’ policy

grievances, the estoppel defence need not be addressed further.

The Submissions of the Parties

Note: The Submissions of the Parties’ counsel were extensive and extremely

helpful. The following is simply a summary of their main arguments.

The Submissions of the Union

The essence of the Union’s case is that the disentitlement to LTD coverage once an

active employee reaches the age of 65 is discriminatory and thereby infringes their

equality rights under s. 15 of the Charter. The Union acknowledged that the Ontario

Human Rights Code [the Code] and the Employment Standards Act [the ESA]

specifically allow for different treatment to employees who are 65+ with respect to LTD

coverage. However, the Union submits that these exemptions or “carve outs” cannot be

applied because the Charter has primacy and guarantees protection and equal benefits

20

of the law without discrimination based on age, with no age limit specified. The Union

asserts that carve outs should not be applied to the administration of this Collective

Agreement.

The Union stressed that the evidence of their expert witness, Dr. Pianosi, should be

accepted as establishing that current governmental policy and legislation are based on

“ageism” and have a negative impact on employment rights, in terms of hiring and

maintaining employment opportunities. It was also argued that Dr. Pianosi’s evidence

established that it is wrong to assume that older workers are less likely to be healthy or

more likely to submit disability claims. These stereotypes were said to deprive older

workers of their dignity and are not supported by the evidence in this case.

Relying further on the evidence of Dr. Pianosi, the Union stressed that more people are

now choosing to work beyond the age of 65 because they remain healthy longer, wish

to make further contributions to society and/or may not be financially able to retire. It

was argued that restricting active employees who are 65+ from LTD coverage

effectively forces them to work if they are injured or ill or to retire in order to maintain

income security. It was pointed out that although this Collective Agreement does allow

“bridging” to a full pension as early as age 58, that opportunity only applies to long-term

employees. Therefore, someone who is 65 with short service may not have access to

the same pensionable income that LTD coverage would offer. Further, it was argued

that even if one could access a full pension, the existing provisions essentially “force”

employees to retire. Stressing that accruing pensionable time and remaining employed

are often critical components of one’s identity, the Union submitted that the age cap on

LTD coverage creates an inappropriate and “adverse impact” based solely on age.

The Union also stressed that the Employer’s evidence demonstrated that the cost of

providing LTD coverage for employees for two years between the ages of 65-70 would

only increase LTD benefit costs by 10%, a factor of only 2.5% over the total benefit

package (excluding vacations). This was said to be insufficient to justify a violation of a

Charter because there was no evidence to support a finding that this Employer could

not afford this cost. Therefore, it was submitted that the detrimental effect of depriving

older workers of LTD coverage is “dramatically more severe” than the cost savings that

the Employer enjoys by the current limited coverage. While it was acknowledged that

Mr. Tremblay testified that the increased cost “could” bankrupt the Employer, the Union

agued that this was “absurd” given the fact that Rayonier is part of a multi-million-dollar

corporate enterprise.

The Union faulted the Employer for failing to look beyond Sun Life for more affordable

insurance carriers that might provide LTD plans for workers 65+. Accordingly, Union

argued that the evidence supports a finding that some form of LTD coverage could be

provided for employees aged 65 or older while still maintaining the viability of the benefit

plans and this Employer’s operations.

The Union argued that the cessation of LTD coverage for active employees once they

turn 65 violates s. 15(1) of the Charter and should not be saved by s. 1, based on the

21

evidence presented and its application to the tests and analyses set out by the Supreme

Court and other authorities, with specific emphasis on Talos v. Grand Erie District

School Board, 2018 HRTO 680. Reliance was also placed on Brown & Beatty 2:38,

supra; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] S.C.J. No. 42;

Law Society of British Columbia v. Andrews [1989] 1 S.C.R. 143; R. v. Kapp [2008] 2

S.C.R. 483; Quebec (Attorney General] v. A. [2013] 1 S.C.R. 61; Kahkewistahaw First

Nation v. Taypotat [2015] 2 S.C.R. 548; Tétreault-Gadoury v. Canada (Employment and

Immigration Commission) [1991] 2 S.C.R. 22; R. v. Oakes [1986] 1 S.C.R. 103; Fraser

v. Canada (Attorney General) [2020] S.C.J. No. 28; Talos v. Grand Erie District School

Board, 2018 HRTO 680; Chatham-Kent (Municipality) v. Ontario (Attorney General)

[2010] O.L.A.A. No. 580; Ontario Public Service Employees Union v. Ontario [2021]

D.G.S.B.A. No. 48.

It was also emphasized that while the Union’s policy grievances initially asked for the

elimination of an age cap on LTD coverage, Mr. Paquette clarified that it is now asking for

a direction to the Parties to open up discussions leading to a more financially viable LTD

plan.

Accordingly, the Union asked for the following remedies:

a) That the policy grievances be allowed;

b) A declaration that s. 25(2)(1) of the Code and s. 44 of the ESA and its Regulation

are of no force and effect pursuant to s.15(1) of the Charter;

c) A declaration that the Employer must provide LTD coverage for active employees

aged 65 and older;

d) To remain seized with this matter to direct the Parties to work together to

determine an appropriate LTD plan for active employees aged 65 and older, and

failing an agreement, to remit the issue back for a determination.

The Submissions of the Employer

The Employer began by cautioning that this Award could have a significant financial

impact beyond the two bargaining units involved in this hearing because of the coalition

bargaining process and the effect it could have on pattern bargaining this industry.

Further, it was pointed out that although there was evidence regarding current cost

estimates, the future costs could be even more prohibitive if the predictions of people

working longer come to fruition. Therefore, the Employer argued that it is not “absurd” to

be concerned about the financial implications of a requirement to provide extended LTD

coverage. This was said to be important in considering the context of the Union’s claim.

The Employer also rejected the suggestion that the LTD plan or its application is based

on stereotyping. It was stressed that the materials relied upon by both Parties’ expert

witnesses indicate that the majority of Canadians retire by the age of 65, with only 10%

working beyond that age. Further, only four out of 280 or 1.4% of Rayonier’s workers

at the Kapuskasing Mill continue to work after age 65, which was said to be due to the

physically demanding nature of these jobs.

22

The Employer noted that when the grievances were originally filed, the Union was

asking for LTD coverage to be provided for workers 65 years of age and older, without

any age cap to provide equal treatment for all employees. With the Union now asking

for the matter to be remitted back to the Parties to allow the Union to negotiate for an

LTD plan with some age limitations, the Employer suggested that it is ironic that the

current request would also lead to the possibility of discrimination or “differential

treatment” based on age, a result that the Union claims it is trying to remedy.

As a matter of contractual application and interpretation, the Employer relied on the

following authorities that have upheld differentials in benefits for employees 65 and

older with respect to LTD coverage: O.N.A. v. Chatham-Kent, supra; Withler v. Canada

(Attorney General), 2011 SCC 12; Repaye v. Flex-N-Gate Canada, 2012 HRTO 1258;

Karina v. Toronto (City), 2014 HRTO 395; University Health Network and ONA (CM-34),

(Surdykowski); Bentley v. Air Canada and Air Canada Pilots Association, 2019 CHRT

37; Brown & Beatty 4:7, supra; Sabhi and Bombardier Inc., supra; Banker v. Molson

Coors Breweries and another (No. 3), supra; and Gouthro and Workplace Safety and

Insurance Board, 2011 ONWSIAT 2525.

Turning to the Union’s Charter arguments, the Employer stressed that Talos is not

binding on this dispute because it did not address the issue of LTD coverage. The

Employer relied instead on the decision in Bentley v. Air Canada and Air Canada Pilots

Association, supra, wherein the overall benefit package available to employees at the

age of retirement was a significant factor in determining that an age cap on LTD

coverage is justifiable under s. 1 of the Charter.

The Employer also stressed that LTD insurance is designed to provide income

replacement. The Employer suggested that this Collective Agreement’s pension and its

bridging provisions provide reasonable income security for older employees.

Accordingly, it was said that the different LTD coverage based on age does not have a

prejudicial impact because older employees can achieve income continuance and there

is no evidence that anyone has been adversely affected by the LTD plan in place. It

was also pointed out that there are also “generous” health and welfare benefits

available to active employees over the age of 65 under this Collective Agreement and

significant bridging provisions that allow employees to retire with full pension even

before the age of 65. Further, it was stressed that there was no evidence of any

bargaining unit member who felt forced to retire because LTD coverage was not

available after sh/e turned 65. Since the evidence indicated the average retirement age

in this workforce to be 60, it was argued that the cost of securing unlimited or even a

somewhat limited LTD coverage for employees 65 and older would be disproportioned

to the benefits it might provide. Further, it was stressed that the cost of any coverage

beyond age 65 would have to be factored into the compensation package for all of the

bargaining unit.

The Employer relied on one aspect of Dr. Pianosi’s evidence when she testified that a

person’s decision about retirement could depend on the type of work they do and

whether they had access to retirement income. This was said to be important for this

23

workforce that does physically demanding work and has a “generous pension”. On the

other hand, the Employer submitted that Dr Pianosi’s suggestion that older workers

were not more prone to injury or longer disabilities was countered by the Employer’s

evidence that established that 99.9% of LTD plans available with an age cap of 64 are

based on insurance industry’s experience with the assessment of risk.

It was also argued that the 10% increase in premiums is not warranted for the small

number of employees who may possibly benefit from the extended coverage. Stressing

that the Employer is not obligated to provide the best coverage available, it was

submitted that the current LTD plan is justifiable under s. 1 of the Charter because the

LTD plan agreed to by the Union should be upheld to provide assurances that freely

bargained provisions will be respected. In support of its Charter defence, the Employer

also relied on R. v. Oakes, supra; R. v. Videoflicks Ltd., supra; and Toronto Hydro-

Electric System Ltd. and Power Workers’ Union (TH-P-21), (2020) 147 C.L.A.S. 83.

The Employer argued that the facts and evidence in this case are distinguishable from

OPSEU v. Ontario, supra, by stressing that it dealt with a plan that forced employees

who were eligible to retire with an unreduced pension to either retire or pay their own

pension contributions with no available or alternative options. The sole purpose of that

new provision was to save the employer money. This was said to be different from the

facts of the case at hand.

Accordingly, the Employer asked that the policy grievances respecting LTD be

dismissed.

The Union’s Reply Submissions

The Union emphasized that it is simply asking for a declaration “striking down” the

blanket exclusion from LTD coverage based on age and to remit the remedy to the

Parties, recognizing that the Talos decision contemplates that “some” distinctions based

on age may be reasonable.

The Union also pointed out that the evidence in the Talos and the Chatham-Kent cases

reveal that LTD coverage is available from carriers other than Sun Life for employees

65 and older. Therefore, it was argued that there are ways of achieving the legislative

goal of protecting human rights and dignity without having an age cap of 65 for LTD

coverage.

Further, it was argued that it would be viable for this Employer to purchase an LTD plan

that provided two years of coverage for employees aged 65-70, for a period of two

years. To illustrate this and to contrast it with the evidence in the other cited cases, the

Union pointed out the following:

 The Employer provided no evidence of the cost of providing LTD coverage

for employees aged 65-70

24

 The cost of providing two years of LTD coverage between the ages of 65-

70 for this Employer would be approximately $80,000 or an increase of

10% per year

 The cost of providing LTD for a 40-year-old employee would rise by 14%

and for a 60-year-old would rise by 129% for this Employer

 The increase in total benefit premiums would be 2.5% for this Employer

 In Bentley, the cost for LTD coverage for employees 65+ was 18x or

1800% higher

 In Chatham-Kent, the cost for LTD coverage for employees 65+ would be

20-25% of the total benefits. [See footnote 1 below]

Further, the Union relied on the analysis in Talos, where it was said that collective

bargaining cannot justify a violation of the Charter because all too often the needs or

desires of the majority are favoured over those of the minority.

The Union stressed that it was not obliged to present evidence from disadvantaged

employees to support the contention that the current level of LTD coverage is

disadvantaging older workers. It was stressed that its policy grievances were supported

by the Employer’s evidence that revealed that stereotypical or “ageist” assumptions are

applied by insurers to impose age caps on LTD coverage. The Union also cautioned

against acceding to the Employer’s concerns about the financial impact of an award

favouring the Union on other contracts in this industry or elsewhere, stressing that this

case must be decided solely on the evidence presented in this hearing.

The Decision regarding LTD

While the Human Rights Code protects every person’s right to equal treatment with

respect to employment without discrimination on the basis of age, s. 25(2.1) declares

that this right is not infringed by a benefit plan that complies with the Employment

Standards Act. The ESA’s Regulation 286/01, s. 8 specifically permits age

differentiation with respect to age for short and long term disability plans. The essence

of the Union’s case is that this legislation offends s. 15 of the Charter. An arbitrator’s

jurisdiction does not extend to declaring the Code’s or the ESA’s “carve outs”

unconstitutional where they exempt LTD plans from age discrimination prohibitions.

However, an arbitrator can determine that these carve outs do not apply if they offend

the Charter, see Cutty Chicks Ltd. v. OLRB, supra, and Brown and Beatty at 2:3, supra.

The Parties agree that the caselaw relating to the Code and the Charter establish that

where employees are treated differently on the basis of age and this has an adverse

effect, that amounts to a prima facie case of discrimination. Since the termination of

LTD coverage under the Parties’ Collective Agreement is pegged at active employees’

1 The Union argued that this could be for the LTD plan or the total cost of all plans. However, I am assuming that it

refers to the increased cost of providing the LTD plan alone.

25

65^thbirthdays, leaving them without a benefit that is available to their younger co-

workers, the evidence supports a finding of prima facie age discrimination in this case.

Therefore, pegging the age 65 as an age to terminate LTD coverage does amount to

prima facie discrimination, contrary to s. 15 of the Charter. This is not meant as a

negative comment on the Employer and the Union for their joint decision to adopt this

LTD plan into their Collective Agreement. It is simply a statement about the application

of the facts to the law and it is necessary to shift the focus to the fundamental issue in

this case, that being whether the Parties’ LTD plan is saved by s. 1 of the Charter.

The Parties agree that R. v. Oakes, supra, sets out the legal analysis that must be

applied to this Charter question. The resulting “Oakes” test provides:

1. The limit on a Charter right must be of sufficient importance to warrant

overriding a constitutionally protected right

2. The means chosen must be reasonable and demonstrably justified. This

involves a proportionality test with three components,

i)

The measures adopted must be carefully designed to achieve the

objective in question. They must not be arbitrary, unfair or based on

irrational considerations, i.e., they must be rationally connected to

the objective

ii)

Even if rationally connected to the objective, the means should

impair, “as little as possible”, the right in question

There must be proportionality between the effects of the measures

which are responsible for limiting the Charter right and the objective

that is being identified as being of “sufficient importance”.

[para. 68]

iii)

Further, “cogent and persuasive evidence” is required to clarify the consequences of

imposing or not imposing any limits on Charter rights, and decision makers should

consider “what alternative measures” might be available to implement the Charter’s

objectives.

In R. v. Kapp, supra, the Supreme Court of Canada further specified that the central

concern of the Charter’s s. 15 is to combat discrimination by prohibiting the perpetuation

of disadvantage and stereotyping by the imposition of disadvantages. This resulted in

the requirement to analyze whether,

a)

b)

Does the law (or provision) create a distinction based on an

enumerated ground?

If yes,

Does the distinction create a disadvantage by perpetuating

prejudice or stereotyping?

Using this analysis to consider the application of the Charter, the Supreme Court struck

down the Unemployment Insurance Act’s denial of benefits to people over the age of 65

26

because there was no evidence that the government could not afford to extend the

benefits and there was no evidence of any other measures that filled the gap for people

65 and older who had to keep working because they had no pension or their pension

was insufficient, see Tétrault-Gadoury v. Canada (Employment and Immigration

Commission), supra.

A contrasting conclusion was reached by the Supreme Court on a different set of facts

in the Withler case, supra, involving a class action on behalf of the “widows” of public

employees whose supplementary death benefits were reduced because of the age of their

“husbands” at the time of their deaths. The key issue in that case was whether the

Charter’s s. 15(1) was being violated by Federal pension legislation that reduced the death

benefit by 10% for each year a plan member was over a certain age. The Supreme Court

took into consideration the fact that the supplementary death benefit was “only one part” of

a package of survivor benefits available to the plaintiffs, including pension, a health care

plan, a dental plan, a children’s allowance and student’s allowance. The Supreme Court

applied the two part “Kapp” test and explained as follows:

[31] The two steps reflect the fact that not all distinctions are, in and of

themselves, contrary to s. 15(1) of the Charter (Andrews; Law; Ermineskin Indian

Band, at para. 188). Equality is not about sameness and s. 15(1) does not

protect a right to identical treatment. Rather, it protects every person’s equal

right to be free from discrimination. Accordingly, in order to establish a violation

of s. 15(1), a person “must show not only that he or she is not receiving equal

treatment before and under the law or that the law has a differential impact on

him or her in the protection or benefit accorded by law but, in addition, must show

that the legislative impact of the law is discriminatory” (Andrews, at p.

182; Ermineskin Indian Band, at para. 188; Kapp, at para. 28).

. . . .

[34] However, a distinction based on an enumerated or analogous ground is not

by itself sufficient to found a violation of s. 15(1). At the second step, it must be

shown that the law has a discriminatory impact in terms of prejudicing or

stereotyping in the sense expressed in Andrews.

. . . .

[37] Whether the s. 15 analysis focusses on perpetuating disadvantage or

stereotyping, the analysis involves looking at the circumstances of members of

the group and the negative impact of the law on them. The analysis is

contextual, not formalistic, grounded in the actual situation of the group and the

potential of the impugned law to worsen their situation. [emphasis added]

. . . .

[66] The particular contextual factors relevant to the substantive equality inquiry

at the second step will vary with the nature of the case.

27

[67] In cases involving a pension benefits program such as this case, the

contextual inquiry at the second step of the s. 15(1) analysis will typically focus

on the purpose of the provision that is alleged to discriminate, viewed in the

broader context of the scheme as a whole. Whom did the legislature intend to

benefit and why?

In the Withler case, supra, the Supreme Court found that the statues in question created

a “distinction” on the basis of age by denying a benefit to the claimants that others of a

younger age were receiving. That finding moved the Court to Step Two of the analysis

to determine whether the impugned statues perpetuated disadvantages, prejudices or

stereotypes of the claimant group:

[71] . . . . a central consideration is the purpose of the impugned provision in the

context of the broader pension scheme. It is in the nature of a pension benefit

scheme that it is designed to benefit a number of groups in different

circumstances and with different interests. The question is whether the lines

drawn are generally appropriate, having regard to the circumstances of the

groups impacted and the objects of the scheme. Perfect correspondence is not

required. Allocation of resources and legislative policy goals may be matters to

consider. The question is whether, having regard to these and any other relevant

factors, the distinction the law makes between the claimant group and others

discriminates by perpetuating disadvantage or prejudice to the claimant group, or

by stereotyping the group. [emphasis added]

In the context of the Withler claim, the Supreme Court accepted that the supplementary

death benefit is not intended to be a long-term stream of income for older surviving

spouses because their long-term income security was guaranteed by the survivor’s

pension entitlements and their health and dental plans. That allowed the Court to

conclude:

[77] . . . . The degree of correspondence between the differential treatment and the

claimant group’s reality confirms the absence of any negative or invidious

stereotyping on the basis of age. The benefit scheme uses age-based rules that,

overall, are effective in meeting the actual needs of the claimants, and in achieving

important goals such as ensuring that retiree benefits are meaningful.

The Withler case is the Supreme Court’s instruction on how to view Charter challenges

contextually to determine whether the differential treatment with respect to benefits

creates a result that is detrimental to the claimant(s), given the whole of the

circumstances.

Consistent with that, the Taypotat case, supra, called for the determination of whether

the application of the Code and the ESA responds to the capacities and needs of

workers who are 65 and older or instead imposed burdens or denied benefits that

effectively reinforced, perpetuated or exacerbated their disadvantages. The evidence in

this hearing illustrated different aspects of aging. The insurance industry’s claims’

28

experience established an increased risk of injury and extended illness as workers age.

That is why 99.9% of insurers declined to even quote on any form of LTD coverage after

age 65 for this workforce. In contrast, Dr. Pianosi, the expert in Gerontology, explained

that the Canadian population is a fast growing sector of society that is able and willing to

work longer and better, either by choice or need, than previous generations. However,

the actual experience in this workplace revealed that while a few employees have

decided to work after they turn 65, most chose to retire around the age of 60. That may

explain why there are fewer disability claims from those employees who are 60+. The

Parties’ experts both agreed that while some people want to work or must work after

they turn 65, whether they do so or not depends a great deal on their personal health,

family and work circumstances. In the context of this workplace, the physically demanding

nature of the work and the availability of a significant pension are both factors that result in

the vast majority of retirements happening before the age of 65. The reality is that this is

not a workforce that has a history of workers continuing their employment after they turn

65. From 2011 to 2020 the average age of retirement was 60. The first time someone

over the age of 65 retired was in 2020. That year only three out of 23 retirees were over

the age of 65. Therefore, it is important to consider whether the cap on LTD at age 65

creates disadvantages and/or does not respond to the needs of this workforce.

This brings to the fore the question of the reasonability of the age cap of 65 on LTD

coverage for these Parties. To answer that question, it is helpful to examine the caselaw

leading up to this dispute. The justification for an age-based distinction affecting benefits

was considered fully by Arbitrator Etherington in Chatham-Kent, supra. That case dealt

with a union’s claim that the employer had violated the Code and the Charter by

discriminating against employees who were 65 or older by stopping a number of

benefits available to younger employees, including LTD and AD&D coverage. Faced

with this situation, Arbitrator Etherington explained the historical context of the

elimination of mandatory retirement and the “carve outs” of pension and LTD from the

Code’s and the ESA’s protections:

[122] First, . . . the government was facing a complex task when it decided to

extend the protections of the Code to eliminate mandatory retirement, because of

the central role that mandatory retirement had come to play in collective

agreements and other rules governing the employment relationship in the

province.

. . . .

[124] Second, I find that the choice of age 65 as the limit for exemption from

Code protection for treatment in pension and benefit plans is a reasonable age

limit, one that impairs the right no more than is reasonably necessary to attain

the identified government objective.

Arbitrator Etherington acknowledged that while age 65 may be a “somewhat arbitrary

and historical” choice, it was based on the age at which certain government benefits

become payable in unreduced amounts. Arbitrator Etherington concluded that a

collective agreement that excluded LTD and Life Insurance coverage for employees over

the age of 65 violated the right to equal protection and equal benefits under s. 15 of the

29

Charter. However, after a careful analysis of the history of the ESA, Arbitrator

Etherington concluded that the differentiation was “demonstrably justifiable” under s.

1 of the Charter. Following and adopting that approach, the facts of this case lead to a

similar conclusion.

The LTD Plan in this Collective Agreement does create an express distinction based on

age by denying employees who are 65 and older a benefit that is available to younger

employees. The exclusion may have no significant age relatedness in terms of

employees’ needs. Some employees will need or choose to work beyond 65, particularly

people who entered or returned to the workforce later in life and who do not have access

to a full pension at age 65.

Therefore, the important question in the Chatham-Kent case that applies to this case is

whether the exclusion of coverage constitutes a reasonable limit under section 1 of the

Charter. I agree with Arbitrator Etherington where he noted that it was “simply not possible

to contemplate a contextual analysis under section 1 that fails to give due consideration to

the impact of the legislation or its constitutional removal on other important and social and

economic practices and values . . . . like free collective bargaining to regulate workplace

terms and conditions.” Although the age of 65 may have been based on an arbitrary

and/or historical cut-off when mandatory retirement was abolished, the Legislature had to

draw a line that balanced the interests of the individuals with the collective interests. The

“carve out” at age 65 for pension and benefits in the Code and the ESA was the “line” that

was drawn to match the point where unreduced government pensions become available.

Similarly, the Parties to this Collective Agreement adopted the age of 65, the point that

coincides with the Parties’ pension and government unreduced pension availability.

In assessing whether the elimination of LTD coverage at age 65 was “reasonable or

justifiable” under s. 1 of the Charter, Arbitrator Etherington noted that “age is different” from

other prohibited grounds of discrimination because aging is a shared experience by

everyone. Quoting from McKinney v. University of Guelph, 1990 60 (SCC),

[1990] 3 SCR 229, Chatham-Kent noted that the issue of age raises important social

and economic values that impact the question of “reasonable limits” with respect to age

discrimination and s. 1 of the Charter:

The present situation allows the parties concerned, the employers and the

employees, the freedom to agree about an issue of central importance to their lives

and activities. The freedom of employers and employees to determine conditions

of the workplace for themselves through a process of bargaining is a very desirable

goal in a free society.

While it will always be important to protect against age-based discrimination, the Charter

also protects the freedom of association, which brings with it the protection of collective

bargaining. In that context, parties have to balance the interests of newly hired employees

who are beginning their careers with those at the end of their careers. Freely negotiated

provisions are the result of parties’ mutual agreements about how to address and balance

the interests of the bargaining unit members and operational considerations. Parties have

30

the right to determine their own bargaining objectives. The importance of collective

bargaining as an aspect of the Charter’s freedom of association and as a core aspect of

employment in our society is considered by the Supreme Court to be a significant factor in

the proportionality analysis. Therefore, I agree with the Chatham-Kent decision where it

concluded that allowing workers to remain actively employed while providing different

treatment with respect to participation in benefit and group insurance plans can be a

reasonable limit on equality rights.

Until the decision in Talos, the long line of cases cited by the Employer and listed above

followed Chatham-Kent and agreed that the Code and the ESA carve outs for pension

and LTD were saved by s. 1 of the Charter. They reflect the fact that many collective

agreements continued to provide a different level of LTD benefits to employees who

were 65 or older.

The decision in Talos seemed to change the landscape and prompted this Union to

raise the question of whether s. 25(2.1) of the Code and s. 44 of the ESA and O. Reg

286/01 are contrary to s. 15(1) of the Charter, thereby rendering the cut off on the basis

of age in an LTD plan discriminatory.

The Talos case is important because this Union relied on its reasoning. Talos arose in

the context of a collective agreement that terminated extended health, dental and life

insurance benefits when an employee turned 65. The Ontario Human Rights Tribunal

applied the Charter analysis prescribed by Oakes and Kapp, upheld the complaint and

summarized its rationale as follows:

[15]

Section 25(2.1) of the Code, in conjunction with the Employment

Standards Act, 2000 (S.O. 2000, c. 41) (“ESA”) and its Regulations, creates a

distinction between workers under the age of 65 and those who are 65 and older

who perform the same work and are vulnerable to losing a portion of their

remuneration package. The former are protected by the Code from age-

differentiated workplace group benefits, on any basis other than an actuarial basis,

while the latter group is not afforded Code protection and is thus vulnerable to not

being rewarded equally for work performed. The ending of mandatory retirement

with the 2006 passage of Bill 211 did not end the differential treatment of workers

over age 65; section 25(2.1), in conjunction with the ESA and its Regulations,

specifically carved out 65 and older workers from protections with respect to

different treatment in benefits plans, pension and other workplace plans, in a bid

to maintain flexibility for the workplace parties to make arrangements that would

respect the financial viability of those plans.

[16]

It is evident that employees who work after age 65 provide the same

labour as they did when they were 64 years of age and would normally be

guaranteed equal compensation, including access to benefits. Absent the

impugned provision, a benefit differential that is only explained by the age of the

employee would be prima facie age discrimination under the Code. In my view, a

legislative provision that prevents a worker age 65 and older from being able to

31

challenge any reduction or elimination of access to workplace benefits as age

discrimination is a prima facie violation of s. 15(1) of the Charter. Relying

on Tétrault-Gadoury, and distinguishing Withler, I do not accept the responses

advanced by the Board that Mr. Talos suffered no disadvantage because of the

“generous” nature of his pension, that “he [Talos] can lead an economically viable

life during his senior years” because he benefited from being the member of a

union, and that his transition to government funded programs at age 65 adequately

substituted for benefits that he previously enjoyed as part of his remuneration

package. I find that these considerations are irrelevant to determining whether Mr.

Talos’ equality right (to equal compensation) in employment as guaranteed by s.

15(1) of the Charter was infringed.

[17]

On a plain reading of the ESA and the Code, I find that neither statute

supports the respondent’s submission that Mr. Talos’ long career and his

membership in a profession and a union are relevant to the statutory protections

afforded to all employees by these two statutes. These two statutes establish

minimum standards for conduct and conditions of employment without regard to

an employee’s access to a collective bargaining process. Talos was denied the

protection of the Code, not because he had a long successful career or was

unionized, but because he was over age 65. To restrict the interpretation of the

impugned section to the particular context of Mr. Talos would be inconsistent with

the approach taken by the Court in McKinney and other cases that addressed the

issue of “proportionality” articulated in the Oakes test by reference to the impact

on all workers “65 and older” to whom the impugned law applies.

[18]

The AG [Ontario Attorney-General] submitted that McKinney stands for

the proposition that all other provisions of the Code that impact employment terms

and benefits for workers 65 and older remain constitutional in the wake of

legislative action to end mandatory retirement (“Bill 211”). In my

view, McKinney offers no assistance in addressing the instant question of whether

the impugned section of the Code is constitutional, where vestiges of age-based

differentiation in employment remain in the Code after mandatory (or involuntary)

retirement was expressly prohibited. McKinney addressed ss. 9(a) and 4 of a

former version of the Code (now ss. 10(a) and 5 of the current Code), did not

address the ESA or any link between the ESA and the Code, and, in any event,

predates Bill 211 and the current climate and availability of empirical data to

determine the issue in dispute.

[19]

The Tribunal disagrees with the AG’s submission that the decision of

grievance arbitrator Brian Etherington in Chatham-Kent (Municipality) v. O.N.A.

(O’Brien) . . . is persuasive and should be followed. In Chatham-Kent, the

constitutionality of s. 25(2.1) of the Code and the relevant provisions of

the ESA and its Regulations was upheld. I agree with Arbitrator Etherington’s

determination that the equality provision of the Charter is infringed by s. 25(2.1) of

the Code on the basis of age, but I disagree with Arbitrator Etherington’s decision

that the infringement is saved by section 1 of the Charter. It is noteworthy that the

32

actuarial evidence presented in the instant Application differed significantly with

that presented in Chatham- Kent regarding the cost associated with benefits for

employees in their 60’s.

[20]

The fact that the collective bargaining process (rather than results) is

constitutionally protected under s. 2(d) of the Charter is not determinative of the s.

1 Charter analysis, as the impugned Code section and the ESA’s permission of

age-differentiated benefits plans apply without modification to non-bargaining unit

members. In the result, this Tribunal finds that there are no competing

constitutional rights engaged in the instant Application.

[21]

Moreover, for the section 1 justification, I find that the evidence does not

support the respondent’s submission that the purpose of the impugned provision

was to provide flexibility for employees (including non-unionized employees) and

employers to determine optimal compensation through a collective or individual

bargaining process. I find that this purported purpose is conjectural and irrelevant

to the instant Application.

[22]

The instant hearing involved the participation of the Ontario Human Rights

Commission (OHRC), and various intervenor unions and faculty associations, and

the Tribunal had the benefit of opinion evidence of various experts that were not

available to the arbitrator in Chatham-Kent. In the intervening years since

involuntary (mandatory) retirement was eliminated in 2006, societal views of

workers over age 65 have changed significantly, compensation packages have

also changed, and the experience of claims and costing for a decade are

particularly relevant today to the justification of age-differentiated benefits and the

financial viability of workplace plans that include workers age 65 and older.

[23]

After considering all the evidence, I conclude that the financial viability of

workplace benefits plans can be achieved without making the age 65 and older

group vulnerable to the loss of employment benefits without recourse to a (quasi-

constitutional) human rights claim. I find that the impugned provisions do not

minimally impair the rights of these older workers, as an employer is not required

to demonstrate that their exclusion from employment benefits is reasonable

or bona fide, or justified on an actuarial basis, or because their inclusion would

cause undue hardship.

It is important to note that the Talos decision did not deal with a claim for LTD benefits.

At para. 284, it was said: “For greater clarity, this decision does not address long term

disability insurance, pension plans and superannuation funds.” Nevertheless, the Talos

decision and its rationale must be addressed.

First, it is important to note that the underlying facts in Talos are significantly

distinguishable from the facts of the case at hand. Although Mr. Talos had a pension and

government income sources available to him, he wanted to continue working because he

valued his work as a teacher and he needed the group health benefits because of his

33

family’s circumstances. The loss of those benefits when he turned 65 deprived Mr. Talos

of all his family’s health benefits, without any viable alternative options. Unlike the

situation in Talos, the Collective Agreement in the case at hand maintains a substantial

suite of health care benefits for active employees and their eligible dependents without age

restrictions for items that include dental, Short Term Disability, Extended Health Insurance,

safety shoes and glasses. The cost of this “suite” of benefits constitutes a significant value

for the members of the bargaining unit. Further, this case involves a claim for continued

LTD coverage. Alternative sources of income continuation are also available to employees

who are 65+ through their pension or from Short Term Disability insurance for 52 weeks.

As such, this pension and the benefits are factors that must be taken into account as part

of the context of this case that is very different than Talos.

As the Employer’s witnesses explained, each compensation item has implications on the

package that is adopted into their Collective Agreement. The Parties’ resulting bargain,

with a set of significant benefits, balances the interests of the employees who are starting

their employment, together with those who choose or must work beyond age 65, by

offering them a pension that allows them to retire and maintain a sustainable income

before or at the age of 65. As even the Talos decision acknowledged.

[223] . . . . With regard to the evidence about the increase in cost for life

insurance (and LTD if applicable) with age, an employer could be left room to

reduce or eliminate such coverage for workers 65 and older if such reduction or

elimination could be justified empirically as reasonable and bona fide, without

resort to the impugned blanket “carve out” provision. [emphasis added]

This paragraph recognizes that the elimination of LTD at the age of 65 can be justified

and reasonable in the proper circumstances.

Therefore, in accordance with the Oakes, Kapp and Withler analyses, the LTD coverage

until age 65 must be considered in light of the context of the situation facing older

workers in these two bargaining units to see if it is justified and reasonable.

The Talos decision did not consider the “fostering” of free collective bargaining process

to be a significant contextual factor in that case. That conclusion was explained on the

basis of the factual background to that case and the adjudicator’s reliance on the

“undisputed opinion of expert labour relations experts” in that hearing who testified that,

“minority interests cannot be assured through a collective bargaining process that by

design favours majority interests”, [para. 257]. However, that same paragraph began

with the following important comment as it pertains to collective bargaining: "Given the

reality that some benefits costs may become cost prohibitive with age, achieving

‘substantive’ equality in pay and benefits may require age-differentiation in benefits

coverage or increased costs to employers and/or employees for premiums”. Therefore,

the Talos decision recognized that the Charter’s and the Code’s goal of achieving

substantive equality in pay and benefits may require age differentiation in coverage.

Differences do not necessarily equate to discrimination. Further, while it may

sometimes be true that “minority interests cannot be assured through a collective

bargaining process that by design favours majority interests”, that is why s. 1 of the

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Charter ensures that majority interests do not result in discrimination or adverse impacts

on minority rights. This allows for the nuanced analysis that can determine whether the

different treatment is reasonable and justified, or whether it is discriminatory. Section 1

of the Charter allows for “substantive equality” to be achieved when collective

agreement provisions are reasonably and demonstrably justified.

Accordingly, I have adopted the Chatham-Kent contextual analysis because it is rational,

consistent with the Supreme Court’s jurisprudence and it remains very persuasive. It

recognizes that application of the Code’s s. 25(2.1-2.3) and the ESA and its Regulation to

an LTD plan with an age cap may violate s. 1 of the Charter, however, in certain

circumstances provisions can be saved by s. 1.

To summarize the analysis that follows, I have concluded that the Parties’ choice of age 65

as the limit on LTD coverage has been demonstrated to be reasonably justified because it

is rationally connected to and consistent with the age at which government pensions are

unreduced and it coincides with the age at which this Collective Agreement provides an

unreduced pension. The age cut-off impacts as little as possible on individuals, given the

host of other benefits available to workers aged 65 and older and the demographics of this

workforce. Finally, the limit on LTD coverage meets the “proportionality test” by virtue of

the fact that age is a lesser concern in the context of this Collective Agreement’s package

of benefits and the importance of giving deference to the economic and social value of

allowing employers and employees to determine the conditions of their workplaces for

themselves. This is more fully explained below.

The reality of this workplace is the relevant context. The vast majority of bargaining unit

members in this workforce retire from this demanding work at the average age of 60. There

are only four active employees aged 65+ in a workforce of close to 300. The cost increases

for LTD coverage for them would impact the compensation package available to the

bargaining unit as a whole. That cost could increase exponentially if the Union’s expert’s

predictions of people working longer comes into fruition. Further, the loss of LTD coverage

is offset by the potentially greater benefit available to employees from the pension plan.

Declaring the LTD cut-off to be unenforceable would upset the calculations of cost that led

to the Parties’ joint determination of the overall compensation package, thereby

undermining the Charter’s other goal of protecting the collective bargaining process.

These conclusions do not ignore the Union’s very valid submissions with regard to

society’s attitude towards age and aging workers. The evidence of Dr. Pianosi is accepted

wherein she listed the ways that older workers are too often assumed to be more prone to

illness and accidents, less productive and less adaptable to change. Further, people are

often upset by the very prospect of retirement because work gives them purpose,

dignity and a sense of wellbeing. Therefore, a workplace that discourages employees

from remaining on the job after their 65^thbirthday by denying them a host of benefits

available to younger employees may well be perpetuating stereotypes. However, that

cannot be said to be true of this workplace. The very fact that employees between the

ages of 60-65 have the lowest incidence of disability claims illustrates that these

workers remain productive and valued. While the pension provisions give employees

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the option to retire as early as age 58, the operation of the Collective Agreement does

not encourage employees to leave at age 65 because it supports workers who are 65+

with a host of health related benefits that have no age limit attached. For example,

Extended Health Insurance is continued and STD payments are available for 52 weeks.

Therefore, it cannot be said that this workplace, the termination of LTD at age 65 or the

Collective Agreement perpetuate negative stereotypes about aging. Instead, it offers

alternative protections to employees.

The Union pointed out that the loss of LTD coverage at age 65 may result in employees

feeling compelled to retire if they are suffering from a long term illness or disability. While

there is no evidence that this has ever happened, such evidence was not necessary.

Given that this was a hearing into policy grievances, the conclusion can be inferred.

Nevertheless, the situation of such employees must be viewed together with the actual

purpose of an LTD plan. LTD insurance exists to provide income replacement. However,

unlike pensions, LTD is not designed as a lifetime income stream. It is designed to

replace income until a person recovers or reaches pensionable age. There is no evidence

of any LTD plan with no age cap. The benefits of LTD coverage have to be viewed in the

context of these employees also having access to an unreduced pension as early as age

58 or by the time they are 65, unless they have short service. The suite of health and

welfare benefits to workers beyond age 65 provides them with the opportunity to transition

from LTD to a secure pension income that may even be greater than what would be

available under a theoretical extended LTD plan. Therefore, they are not significantly

disadvantaged by being cut off from LTD coverage. It is true that this may result in some

employees deciding to retire sooner than they may have anticipated. That is not a trifling

consideration. However, their dignity is protected by their having access to their pension

income. The combination of STD, LTD and pension benefits creates a package that meets

the needs of workers for income security as they age, thereby satisfying the Supreme

Court’s expectations as set out in Withler, supra.

The Talos decision did not consider the claimant’s ability to draw on OAS and CPP or

personal savings as being relevant to Mr. Talos’ Charter claim, [see para. 229]. That

made sense given that he was seeking continuation of health care benefits for his

family. It was the suite of those particular benefits that mattered to Mr. Talos, not

whether he had an income from a different source. In contrast, the availability of CPP

and OAS at 65 is a relevant factor in considering the general reasonableness or

justification of having an LTD plan’s coverage cease at 65 in this case when other

benefits remain in place for those who are working and there is an alternate source of

pension income for people as early as 58 to transition into for income security. That is

another reason why this case is different from Talos.

Further, the facts of this case are more akin with the facts in Bentley, supra, than the facts

in the Talos case. In Bentley, the Canadian Human Rights Tribunal (CHRT) dealt

directly with the effect of cutting off LTD coverage for pilots when they became eligible

for an unreduced pension. Mr. Bentley had alleged discrimination on the basis of age.

Like Mr. Talos, Mr. Bentley claimed that the legislation creating exemptions for age-

based differentiation in pension and LTD coverage violated s. 15(1) of the Charter. The

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key issue in both the Bentley and Talos cases was whether the provisions in the

collective agreements violated s. 15(1) of the Charter and, if they did, whether they

could be justified in a “free and democratic society” by s. 1 of the Charter. To answer

these questions, the CHRT applied the Supreme Court’s approach in Withler [paras. 18-

23] and declared it “still to be the law” [para. 86]. Further, the HRTC noted that the Talos

decision distinguished its evidence from the Withler case on the basis that Mr. Talos had

no “set-off” or other benefits to ameliorate the cut-off of his benefits. In contrast, the

parties to Mr. Bentley’s case had negotiated a transition to replace disability benefits with

retirement benefits once an employee became eligible for an unreduced pension. This

was said to be a “tangible benefit” and the “type of scheme [that] is explicitly permitted”

under the relevant statutory provisions [para. 85]. This led to the following conclusion:

[95] . . . . based on the facts of this case, Talos should be distinguished. The

key finding by Member Grant in Talos is that benefits at issue (group health,

dental and life insurance) are not ameliorated or set-off by any other employer

provided benefit when employees reach age 65. She said “In Withler, the

Court viewed the trade-offs within the suite of benefits to be appropriately

balanced, and thus found no disadvantage to group members as a whole

because of the age-based reduction in certain benefits. Those facts are

distinguishable from the instant case where age-differentiated benefits in an

employer plan are not ameliorated or set-off by any other employer provided

benefit.”

[96] However, in this case, the termination of disability benefits upon reaching

pensionable age – 60 years old and at least 25 years of service with Air

Canada – is generously set off with retirement benefits, a full unreduced

pension.

[97] Talos should also be distinguished from this case because it involves

group health, dental and life insurance benefits. It excludes disability benefits

and Member Grant made than exclusion explicitly clear several times in her

decision.

Accordingly, the HRTC concluded that its factual context was distinguishable from Talos

and that the Withler analysis continues to be the law, [see para. 88].

The same conclusion must be reached in this case.

Similar to the facts in Bentley, the Parties in the case at hand have a pension plan that

operates on the basis of a pensionable age that corresponds with the age definition in the

applicable statutes. It is true that workers who are 65 and older do not have access to the

LTD coverage available to younger employees, so it follows that they are treated

differently than their younger colleagues. However, even though they may not have the

same benefits, the Supreme Court has said time and time again that not all distinctions or

difference on an enumerated ground amount to discrimination. It is the disadvantage or

the loss of dignity that matters. In the case at hand, employees over the age of 65 can

continue working with many health and welfare protections. It cannot be said that older

37

workers in this workplace are significantly disadvantaged when they can continue

employment with a suite of benefits. If they encounter significant health challenges, they

have access to 52 weeks of Short Term Disability coverage and then the alternative of

transitioning to retirement with a full pension which saves them from income insecurity and

the stigma of loss of dignity.

The financial implications of removing an age cut-off for LTD on the employer’s costs is

also an important factor to address as part of the contextual analysis as was done in the

decisions involving Chatham-Kent, Talos and Bentley. The Union has successfully

illustrated that the financial implications of securing two years of LTD coverage for its

members who are 65-70 may not be as financially unfeasible as the situation faced by the

employers in the earlier caselaw. In Chatham-Kent, the actuarial evidence showed that

the cost of disability benefits for employees 65-70 would increase the employer’s cost by

20-25% and increase steeply when workers entered their 60’s. In Bentley, the cost of

continuing LTD past 65 was estimated to be 18 times the cost for an average aged

employee (40-45). In those cases, the financial burden of that level of coverage was taken

into consideration in the conclusions that age was a justification for the termination of LTD

coverage. In contrast, in Talos, the HRTO received different evidence that enabled it to

conclude that there was no correspondingly “steep” increase in the cost of providing health

and dental benefits that would justify a protection necessary to maintain the financial

viability of those plans.

In the case at hand, the uncontradicted evidence was that no insurers offer LTD coverage

without any age restriction. Further, 99% of the available plans have a cut-off at age 65.

That explains why this Union did not ultimately ask for the removal of any age cap on

coverage. This Employer’s insurance broker explained that the LTD costs would rise by

10% if LTD coverage was provided for employees between the ages of 65-70 for a

maximum of two years. This is significantly less than was shown in the Bentley and

Chatham-Kent cases. Further, nothing in the evidence was sufficient to support a finding

that limited LTD coverage for two years between 65-70 would jeopardize the financial

viability of this Employer’s vast operations at this time. However, the evidence of the

Employer’s expert was that the cost of insuring employees who are 60 or older is

exponentially higher than insuring younger employees. That is based on the

uncontradicted evidence of the insurance industry’s experience with claims incidence and

duration. Therefore, if the Union’s expert’s predictions of an increasingly aging workforce

come to fruition, the cost implications of extending LTD coverage could become much

more significant. Therefore, future costs will have implications on the compensation

package available to bargaining unit members, placing the burden of coverage for the

older workers falling on the younger ones.

Assuming that the Employer could afford some form of extended LTD coverage for

workers who are aged 65-70 and assuming that the Union is serious about wanting to

negotiate for such coverage, it was tempting to grant the Union’s request to send the

Parties back to the bargaining table. However, that would undermine the Collective

Agreement already reached by the Parties. Their benefit package is a significant aspect

of the employees’ compensation and the Employer’s cost. Each element within that

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package impacted the complex deal that the Parties reached. It has to be presumed

that their Collective Agreement was arrived at by carefully balancing the interests of the

entire workforce. Rather than allowing for the “flexibility” to bargain what the Code’s

carve out for pensions and LTD was designed to protect, invalidating the current

provision would effectively undercut the collective bargaining process and have a

chilling effect. Parties must be confident that the deal they reached fully resolved their

issues. The hallmarks of the Code and the Charter are their protection and balancing of

the interests of those affected and ensuring that their dignity is maintained. This does

not require that everyone has to be treated the same. It requires that any differences

are reasonably justified and that no one will be prejudiced by the result.

Therefore, for purposes of the contextual analysis, a significant factor is that the LTD

coverage is the result of collective bargaining. The dollar amount of the monthly LTD

benefit itself was the result of the Union’s success at achieving increased monthly

payments for its members. The terms of the LTD provision are regularly addressed by the

Parties and incorporated into their Collective Agreements. The Parties have agreed upon

the quantum of income replacement payable along with the coverage cut off at age 65.

Like the circumstances in Bentley, these Parties have adopted an LTD Plan that provides

for income protection in the event of a disability and allows for the transition for replacing

disability benefits with retirement benefits when employees become eligible for an

unreduced pension. This creates a tangible benefit that is consistent with the goal of the

Code and the goals of the Charter by ensuring dignified treatment of all employees and

respects the Parties ability to determine the conditions of the workplace for themselves.

While a potentially affordable, albeit limited, LTD plan could be obtained for employees

over the age of 65, that fact does not make the current LTD provision unreasonable. Just

because the benefit might be affordable does not make it a requirement or a right. As

pointed out above, and accepted by the Union, a line has to be drawn somewhere for LTD

coverage. The age of 65 represents a demarcation that these Parties have agreed upon

in free collective bargaining. While the Talos decision dismissed that factor as an

important consideration, the long line of cases before and since Talos from the Supreme

Court affirm that free collective bargaining is a necessary precondition to the meaningful

exercise of the Charter’s constitutional guarantee of freedom of association. Therefore,

the right to free collective bargaining is one that should not be destabilized lightly.

Allowing the terms of these Parties’ LTD plan to remain in place as a matter of their

collective choice preserves their decision to structure a compensation package that

balances the need to recruit younger workers with the desire to retain an experienced

workforce. It also allows them to negotiate changes in future negotiations, if they choose

to do so.

That approach was reaffirmed in 2020 by Arbitrator Albertyn when he was asked to

consider negotiated changes to post-retirement benefits that saved the company

money, but that had an adverse effect on some workers, based on their age. Toronto

Hydro-Electric System and PWU, supra, addressed the question of whether a prima

facie case of discrimination had been established. Although the Charter was not at

issue, he made several points in dismissing the grievance that are of assistance in the

understanding of the case at hand:

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56.

Not every differentiation on age amounts to discrimination. . . . there

are circumstances when distinctions on grounds of age will not be discriminatory.

Society recognizes age distinctions for various purposes that are not regarded as

discriminatory: age 16 to drive a motor vehicle, age 19 to drink alcohol, age 35 to

receive CPP survivor benefits, and so on.

77.

Not every negative impact on an individual in a protected group (here

the eligible employees are a protected group on account of age) guarantees a

human rights remedy. It is the link between that group membership and the

arbitrariness of the disadvantaging criterion or conduct, either on its face or

impact, that triggers the possibility of a remedy.

81.

In collective bargaining the parties seek to accomplish changes to the

collective agreement that best serve their respective interests. Collective

bargaining results in an agreement that compromises the positions of both parties.

Both must make economic choices to achieve the optimal outcome that they can

both accept. Those choices might include distinctions being made on the basis of

different employee retirement dates.

Deference or respect for collective bargaining was also recognized in Ontario Public

Service Employees Union v. Ontario, supra. In that case, the employer had not

established that the objective of the challenged provisions was “pressing or substantial”,

principally because it was being justified on the basis of “modest” cost savings

measures. The facts of that case are distinguishable from the case at hand, but its

analysis and careful review of principles are of assistance. Like the case at hand, the

decision turned on the application of s. 1 of the Charter. The reasoning in both the

Talos and Chatham-Kent decisions was reviewed, leading to the following observations:

[83] To be clear, neither decision stands for the proposition that a violation of s.

15(1) of the Charter is justified under s. 1, because the violation was a result of

collective bargaining. All they stand for is that this fact may be relevant to the

last two criteria of the means test, that is the minimum impairment aspect and the

proportionality requirement.

. . . . . .

[112] The need for flexibility and deference in appropriate cases has been

recognized by the Court in numerous decisions, including McKinney, supra,

R. v. Videoflicks Ltd. 1986 12 (SCC), [1986] 2 S.C.R. 713 (S.C.C.) and

the Court’s more recent decision in Hutterian Brethren of Wilson Colony v.

Alberta 2009 SCC 37 (), [2009] S.C.J. No. 37 (S.C.C.). In the latter case

the Court stated:

Section 1 of the Charter does not demand that the limit on the right be

perfectly calibrated, judged in hindsight, but only that it be “reasonable” and

“demonstrably justified”. Where a complex regulatory response to a social

problem is challenged, courts will generally take a more deferential posture

throughout the s. 1 analysis than they will when the impugned measure is a

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penal state directly threatening the liberty of the accused […] The bar of

constitutionality must not be set so high that responsible creative solutions to

difficult problems would be threatened. A degree of deference is therefore

appropriate. (at para. 37)

This most recent decision on s. 1 of the Charter recognizes the importance of the

contextual analysis and emphasizes that a reasonable and justifiable measure can be

upheld, even when an employment term creates differences based on age.

Therefore, just as the government policy that created the Code and the Charter had to

draw a line that balanced the interests of individuals and the collective, so too do the

parties to a collective agreement have to balance interests in crafting their collective

agreements. Choosing the age of 65 as a cut-off for LTD coverage has been shown to

be reasonable and demonstrably justifiable because, for this workplace, the age of 65 is

greater than, or coincides with, the point when these employees can access their

unreduced pensions, 65 is older than the average age of retirement in this physically

demanding workplace, and it connects with the point that unreduced government

benefits become available. Further, given the other benefits available to employees

without age restrictions, this Collective Agreement allows them to continue working

beyond their 65^thbirthday with some significant benefits and protections if they so

choose. The cut-off of LTD at age 65 creates no significant disadvantage to these

employees and is the result of free collective bargaining, not the result of any

stereotyping or prejudicial treatment of employees in this workplace. Even though there

may be LTD plans that may be affordable for a limited period for employees between

the ages of 65-70, the cost could impact the balance of interests achieved by the

Parties in their complex collective bargaining process. That is a constitutionally

protected process that should not be intruded upon lightly. Given the small number of

bargaining unit members who work past their 65^thbirthday, it was reasonable to allocate

resources in the ways chosen by the Parties. Therefore, it must be concluded that it is

a reasonable limit on equity rights to make provisions that allow for continued

employment of employees who are 65+, but treat them differently with respect to LTD

coverage in this Collective Agreement. Accordingly, while the LTD coverage provided

under this Collective Agreement may not be equal to that available to younger

employees, it is saved by s. 1 of the Charter.

Having concluded that it is reasonable and acceptable for the Parties’ Collective

Agreement to terminate LTD coverage at age 65, it was not necessary to address the

Employer’s estoppel defence.

The conclusions reached in this Award should not be read as implying that any

collectively bargained provision can justify a breach of the Code or the Charter. If the

provision is prima facie discriminatory, only if it meets the tests established in Oakes

and Kapp, supra, will it be protected by s. 1 of the Charter. This Award is simply based

on the evidence presented, the nature and demographic of this workplace and the

specific terms of this Collective Agreement.

41

Therefore, the two policy grievances concerning LTD are dismissed.

CONCLUSION

For all the reasons set out above, it has been concluded that Article 35(a) of the

Collective Agreement makes no differentiation on the basis of age. Therefore, all

employees regardless of age are entitled to the full benefit of Article 35(a), and I so

declare. Accordingly, the Grievor’s estate is entitled to receive two times his annual

salary at the time of his death in accordance with Article 35(a). Further, although the

Collective Agreement creates an age differential for LTD coverage, this was proven to

be demonstrably justified and was therefore saved by s. 1 of the Charter. That is the

principle reason why the two policy grievances concerning LTD have been dismissed.

DATED at TORONTO this 11th day of August, 2022

___________________________

Paula Knopf, Arbitrator

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