Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 02-11-2011

• Judge: A.V.G. Silipo : Vice-Chair M. Christie : Member Representative of Employers F. Jackson : Member Representative of Workers
• Judgment Date: 02 November 2011
• Neutral Citation: 2011 ONWSIAT 2525 DECISION UNDER APPEAL: WSIB ARO decision dated September 16, 2004 APPEARANCES: For the worker: Ms T. A. Gianfelice, Lawyer, Office of the Worker Adviser Mr. R. A. Fink, Lawyer Mr. T. R. Klassen, Associate Professor, York University, Expert Witness For the employer: Ms S. Clark, Lawyer Mr. A. Esonwanne, Lawyer For the Attorney General: Mr. M. Horner, Lawyer Mr. R. Charney, Lawyer Mr. P. Gorham, Expert Witness Other: Ms C. Zimmermann, Lawyer, Tribunal Counsel Office Interpreter: N/A reasons Introduction [1] The worker appealed the decision of Appeals Resolutions Officer S. Marangoni (the ARO) dated September 16, 2004. That decision concluded that the worker was not entitled to loss of earnings (LOE) benefits beyond May 31, 2002 for a back impairment and was not entitled to benefits for a right shoulder injury. [2] In Decision No. 512/06I the Vice Chair upheld the Board’s decision to deny the worker entitlement to benefits for a right shoulder injury, but granted the worker entitlement to LOE benefits from May 31, 2002 until February 5, 2003, pursuant to subsection 43(1)(c) of the Workplace Safety Insurance Act (the WSIA). [3] During the hearing which led to that interim decision, the worker had indicated his intent to pursue a constitutional challenge to subsection 43(1)(c) of the WSIA which limited his LOE benefits to two years post-injury. The worker then complied with all of the required procedures and the constitutional issue is now before the Tribunal. The Vice-Chair of the interim decision requested and the Tribunal Chair directed that a full panel be established to hear the constitutional challenge. [4] As required by the Tribunal's rules of procedures, the worker's lawyer notified the Attorney General for Ontario (the AG) of the constitutional challenge; the AG indicated it would participate. The Panel invited the Office of the Worker Adviser and the Office of the Employer Adviser to participate as interveners. The Office of the Employer Adviser withdrew from the appeal, while the Office of the Worker Adviser joined with Mr. Fink to become co-counsel for the worker. Tribunal Counsel Office also participated in the appeal, providing submissions at various stages in the proceedings. The issues [5] The issues before the Tribunal are as follows: Does subsection 43(1)(c) of the WSIA contravene subsection 15(1) of the Canadian Charter of Rights and Freedoms (the Charter)? If subsection 43(1)(c) of the WSIA does contravene subsection 15(1) of the Charter, is it saved by a consideration of section 1 of the Charter? Structure of the decision [6] This case was an involved and complicated one, involving days of hearings, expert evidence and considerable documentation. At the end of the day, the Panel was unable to reach a consensus and what follows is the reasoning of the Majority. In order to lay out the material, evidence and submissions in a coherent fashion, the Majority will adhere to the following structure in proceeding with its decision: the relevant background to the worker's appeal an historical review of workers’ compensation in Ontario and the origins of the dual award system that led to a loss of earnings (LOE) benefits scheme a summary of the expert evidence provided an overview of the Supreme Court approaches to section 15(1) decisions the relevance of comparator groups submissions from the parties and from Tribunal Counsel Office the relevance of the recent Supreme Court decision in Withler analysis by the Majority on the section 15(1) argument Supreme Court approach to section 1 arguments Submissions by the parties and from Tribunal Counsel Office on section 1 Analysis by the Majority on the section 1 consideration (iv) Background to the worker's appeal [7] The now 72-year-old worker first suffered a compensable back injury, while working for a different employer, in 1982. He went on to receive a 10% permanent disability award (paid as a monthly lifetime pension) and periods of supplementary benefits while he was receiving vocational rehabilitation services. The initial vocational rehabilitation interview assessment noted the worker had a Class G licence, no difficulties with English, and a Grade 5 education. The worker obtained employment in 1987 working for a different employer as a cleaner and, in 1988, started with the accident employer, a municipality, as a parks attendant. [8] On February 5, 2001, the worker fell and hit his head on a locker. He was 63 years old at the time. At the time of injury, he was earning approximately $18 an hour. A Claims Adjudicator accepted that the worker had sustained cervical and lumbar strains and granted him loss of earnings benefits (LOE) benefits until May 31, 2002, when the worker reached age 65. This was also the date of compulsory retirement with the accident employer. The worker went on to receive a 37% Non-economic Loss (NEL) award for his back and neck impairments (also paid on a monthly basis). [9] In February 2003, the worker claimed that he had also injured his right shoulder in the February 5, 2001 accident. On March 3, 2003, a Claims Adjudicator denied him entitlement. The worker objected to this decision and to the date his LOE benefits had been terminated. The Appeals Resolution Officer affirmed the May 2002 date for the termination of LOE benefits on the basis that the employer had mandatory retirement as of that date and any loss of earnings following that period could not reasonably be seen as the result of the work injury. The ARO also concluded there was insufficient evidence to demonstrate that the right shoulder was injured in February 2001. [10] As noted above, in Decision No. 512/06I, the Vice-Chair hearing the case allowed the worker’s appeal in part, granting him LOE benefits from May 31, 2002 to February 5, 2003, in accordance with the provisions of subsection 43(1)(c) of the WSIA which specifies: 43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker’s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. [11] For the purposes of the Charter appeal, the Tribunal Chair constituted a tripartite Panel to hear that issue. In the hearing on the Charter issue, the Panel considered oral and written submissions as a well as testimony from each side’s expert witness. The worker claims that subsection 43(1)(c) of the WSIA violates subsection 15(1) of the Charter on the basis of age since it limited his entitlement to LOE benefits to a maximum of two years post-injury. [12] Subsection 15(1) of the Charter states: 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. [13] The accident employer and the Attorney General (AG) oppose the worker’s appeal. They claim that subsection 43(1)(c) of the WSIA does not violate subsection 15(1) of the Charter. In the event that it is found to do so, they argue that it is saved by section 1 of the Charter. (v) Historical context of compensation law [14] The Charter analysis will be situated within the broader legal and social context. Accordingly, it is appropriate to review the purpose of the workers’ compensation system generally and the benefit award system. [15] Section 1 of the WSIA states the purpose of the Act as follows: 1. The purpose of this Act is to accomplish the following in a financially responsible and accountable manner: To promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases. To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease. To facilitate the re-entry into the labour market of workers and spouses of deceased workers. To provide compensation and other benefits to workers and to the survivors of deceased workers. [16] In Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, Sopinka J., for the Majority, provided a concise overview of the history and purposes of workers’ compensation schemes (at paras. 24-27): Workers’ compensation is a system of compulsory no-fault mutual insurance administered by the state. Its origins go back to 19th century Germany, whence it spread to many other countries, including the United Kingdom and the United States. In Canada, the history of workers’ compensation begins with the report of the Honourable Sir William Ralph Meredith, one-time Chief Justice of Ontario, who in 1910 was appointed to study systems of workers’ compensation around the world and recommend a scheme for Ontario. He proposed compensating injured workers through an accident fund collected from industry and under the management of the state. His proposal was adopted by Ontario in 1914. The other provinces soon followed suit. Saskatchewan enacted The Workmen’s Compensation Act, 1929, S.S. 1928-29, c. 73, in 1929. Sir William Meredith also proposed what has since become known as the “historic trade-off” by which workers lost their cause of action against their employers but gained compensation that depends neither on the fault of the employer nor its ability to pay. Similarly, employers were forced to contribute to a mandatory insurance scheme, but gained freedom from potentially crippling liability. Initially in Ontario, only the employer of the worker who was injured was granted immunity from suit. The Act was amended one year after its passage to provide that injured Schedule 1 workers could not sue any Schedule 1 employer. This amendment was likely designed to account for the multi-employer workplace, where employees of several employers work together. The importance of the historic trade-off has been recognized by the courts. In Reference re Validity of Sections 32 and 34 of the Workers’ Compensation Act, 1983 (1987), 44 D.L.R. (4th) 501 (Nfld. C.A.), Goodridge C.J. compared the advantages of workers’ compensation against its principal disadvantage: benefits that are paid immediately, whether or not the employer is solvent, and without the costs and uncertainties inherent in the tort system; however, there may be some who would recover more from a tort action than they would under the Act. Goodridge C.J. concluded at p. 524: While there may be those who would receive less under the Act than otherwise, when the structure is viewed in total, this is but a negative feature of an otherwise positive plan and does not warrant the condemnation of the legislation that makes it possible. I would add that this so-called negative feature is a necessary feature. The bar to actions against employers is central to the workers’ compensation scheme as Meredith conceived of it: it is the other half of the trade-off. It would be unfair to allow actions to proceed against employers where there was a chance of the injured worker’s obtaining greater compensation, and yet still to force employers to contribute to a no-fault insurance scheme. Montgomery J. also commented on the purposes of workers compensation in Medwid v. Ontario (1988), 48 D.L.R. (4th) 272 (Ont. H.C.). He stated at p. 279 that the scheme is based on four fundamental principles: (a) compensation paid to injured workers without regard to fault; (b) injured workers should enjoy security of payment; (c) administration of the compensation schemes and adjudication of claims handled by an independent commission, and (d) compensation to injured workers provided quickly without court proceedings. I would note that these four principles are interconnected. For instance, security of payment is assured by the existence of an injury fund that is maintained through contributions from employers and administered by an independent commission, the Workers’ Compensation Board. The principle of quick compensation without the need for court proceedings similarly depends upon the fund and the adjudication of claims by the Board. The principle of no-fault recovery assists the goal of speedy compensation by reducing the number issues that must be adjudicated. The bar to actions is not ancillary to this scheme but central to it. If there were no bar, then the integrity of the system would be compromised as employers sought to have their industries exempted from the requirement of paying premiums toward an insurance system that did not, in fact, provide them with any insurance. [17] The above has framed the Majority’s approach in considering the Charter issues at stake in this appeal. (a) Background to the dual award scheme in workers’ compensation in Ontario [18] In Reshaping Workers’ Compensation for Ontario, Professor Weiler proposed the dual award system for Ontario and put forward his recommendation: My analysis of the problem of the permanent partial disability claim has followed a long and winding path, which has led me to a multi-faceted solution. I recommend a two-part scheme for compensation: a lump sum award for pure physical impairment, and periodic payments for actual wage loss. This is to be buttressed by a network of economic incentives and administrative regulations designed to prod both the disabled worker and his employer to take all necessary steps towards re-employment of the former. [19] Professor Weiler’s recommendations were subsequently adopted and worker’s compensation legislation in Ontario has provided for a “dual award” benefit system for accidents on or after January 2, 1990. Under the WSIA, applicable to accidents on or after January 1, 1998, there is a loss of earnings benefit to compensate for financial loss arising from the injury, and a non-economic loss or NEL award, which recognizes a worker’s permanent impairment resulting from the workplace injury. This dual award scheme replaced the former permanent disability pension scheme, which continues to apply to workers who sustained injuries on or before January 1, 1990. (b) Expert evidence (i) Professor Klassen (for the Appellant) [20] Professor Klassen is an Associate Professor in the Department of Political Science and the School of Public Policy and Administration at York University. Among other publications he is the co-editor of Time’s Up: Mandatory Retirement in Canada.[1] [21] Professor Klassen noted that, until recently, there were relatively few older people in the population as a whole. With the aging of the baby-boom generation and accompanying decline in births, people over 65 accounted for 13.7% of the population in 2006. He submitted that surveys have revealed that those who wish to work past age 65, as long as their health permits, have increased from 15% in 1996 to 26% in 2003. [22] Professor Klassen described mandatory retirement as making a decision about employment based on a single characteristic – age – that is unrelated to workplace performance. He noted, “It is a polite way of saying ‘you are fired’ for no reason related to performance.” He referred to Ontario’s amendments to the Ontario Human Rights Code to prohibit mandatory retirement as introduced by the Minister of Labour: The intent of this bill is to simply give all citizens the right to choose when they want to leave the workplace. This legislation is a simple acknowledgement of what we already know: skill, ability, commitment and drive do not suddenly evaporate when somebody turns 65. In fact, in many cases, employees are forced to leave a long-time job they love, only to take their years of experience and skills to a new and unfamiliar employer or organization. There have been many cases in Ontario where organizations and educational faculties have lost valued employees through this long-standing and, let’s face it, rather archaic policy. [23] Professor Klassen observed that, currently, less than 10% of Canada’s workers face mandatory retirement. In his view, the principal rationale for the elimination of compulsory retirement is that a flexible retirement policy makes the most sense not only for the individual workplace parties (workers and employers), but also for society (including tax-payers). [24] Professor Klassen went on to note that the age clauses in the Workplace Safety and Insurance Act, 1997 were in keeping with the existing Ontario Human Rights Code at the time. He acknowledged that in the 1980s and early 1990s the retirement age was falling dramatically from 65 to 60 and, as noted by the Supreme Court, mandatory retirement had become an accepted arrangement in the organization of work in Canada. [25] However, he went on to assert that the underlying demographic of the labour market and related environment has recently been fundamentally altered (as discussed above), as indeed has Human Rights legislation. Professor Klassen pointed out that, while other provincial pieces of legislation had been altered to reflect the abolition of mandatory retirement, section 7 of Bill 211 amended the Workplace Safety and Insurance Act, 1997 to authorize a distinction because of age continue to apply. [26] Finally, Professor Klassen stated that it has become increasingly common for policy makers in Western nations to propose that longer working lives are a solution to ensuring adequate income for older individuals. He went on to observe that recent findings from Statistics Canada suggest that the retirement expectations of Canadian workers are changing and the later retirement is becoming more acceptable. He provided the following graph to demonstrate his point: [27] Planned age of retirement of workers of different age groups in 2002 and 2007 (in percent).[2] Age group Planned Age 2002 2007 Change 45-49 years Before 60 60 to 64 65 or after 32.2 19.5 22.4 29.8 21.9 27.4 -2.4 +2.4 +5 50-54 years Before 60 60 to 64 65 or after 26.5% 22.6% 23.6% 25.2% 27% 25.4% -1.3 +4.4 +1.8 55-59 years Before 60 60-64 65 or after 9.4% 32.9% 30.3% 9.4% 33.4% 30.9% 0 +0.5 +0.5 [28] Professor Klassen pointed out that other studies support that Canadians increasingly desire to work longer. A survey conducted in December 2008 revealed that 48% of employed Canadians believe[3] that they will work beyond age 65. He noted that those 65 of age and over in Canada receive income from a number of sources; given the modest payments from CPP and OAS, employment income is critical for many. [29] Professor Klassen submitted that the demographic conditions referenced earlier are expected to give rise to labour shortages and, as a consequence, more older workers are expected to remain in the workforce in order to support economic growth. He noted that a Quebec report from 2008 anticipated that 700,000 jobs will need to be filled between 2007 and 2011. As a result, the government identified experienced workers who want to remain in the workforce beyond official retirement as one of six key groups who should be encouraged to remain in the labour force.[4] [30] In summary, Professor Klassen cautioned against making arbitrary distinctions between workers based on age. He said there existed a broad policy consensus that workers should be encouraged and allowed to work longer if they are able and wish to do so, and that workers should be granted the necessary legislative protection to do so. He concluded that the demographic trends, especially the aging baby-boom generation, changes in life cycle and shifts in the labour market provide impetus for policies that offer, but do not compel, longer working lives. He closed with the following: The elimination of contractual mandatory retirement in Ontario has caused no discernable disruption to workplace parties or to the functioning of the labour market. As thus, it seems entirely reasonable that changes to policies dealing with injured older workers will likewise have no discernable impact, and indeed may assist in minimizing potential labour shortages. More broadly, given the aging of the population, there will be a considerably larger number of older workers in Ontario in the decades to come, and some of those will be injured in the workplace. The most effective public policy, and one which also addressed current and future demographic and related pressures while meeting the needs of individuals and employers, will be not to assume that older injured workers wish - or must - retire at age 65. The policy principles inherent in the legislation to ban mandatory retirement at age 65 are equally applicable to older workers who are injured in the workplace. (ii) Peter Gorham (for the AG) [31] Mr. Gorham is a partner with Morneau Sobeco in Toronto. He provides pension, benefits and actuarial consulting services to clients as well as actuarial expert testimony. He is a fellow of the Canadian Institute of Actuaries and of the Society of Actuaries, receiving his actuarial fellowship in 1980. [32] Mr. Gorham spoke to the principle of insurance: that is, one based on applying probabilities to a group of people and not designed with the individual in mind. In his words, “for insurance to work, any indemnity paid should be as a result of an objectively verifiable situation.” In his view, the question of whether an injured worker would have remained employed in the absence of disability was subjective – many factors enter into a person’s decision to work. One cannot state definitively whether a disabled person would have remained employed if there were no disability. [33] Mr. Gorham stated that from an actuarial perspective one would look at the statistics to determine the likelihood of employment. He submitted that to have a sound actuarial basis, the WSIA must remove the subjective issue of employment and replace it with an objective measure. Based on the principles of insurance and on actuarial principles, it is appropriate to base wage loss compensation in insurance plans such as the WSIA on statistics derived from a large group of working Canadians rather than on the predictions or intentions of an individual. [34] Mr. Gorham noted that almost all pension plans provide a normal retirement date - the most common being age 65. The right to commence pension benefits after the normal retirement date is usually related to whether one continues to work. Almost all pension plans require that an employee cease working for the sponsoring organization in order to commence receiving a pension. [35] Turning to the Canada Pension Plan (CPP), Mr. Gorham noted that the CPP retirement assumptions (for the years 2001 -2006) provided for 96.5% of males and 96.9% of females to retire at or prior to age 65. These assumptions are based on a review of historical experience and expected future developments. [36] In reviewing the labour force numbers reported by Statistics Canada, Mr. Gorham pointed out that, in 2008, 9.8% of those over age 65 were employed. He acknowledged that there has been a gradual increase in the past five years in the percentage of the population over 65 who are in the work force. However, even with the gradual increase, the level is still very low after age 65 in relation to prior to 65. Moreover, there is a significant decrease in the earnings of people at about age 65. For example, in 2007 there were 806,000 people aged 65 or over who reported having income from earnings (including both employed and self-employed earnings). The median income was $1,300.00 a year, signifying that approximately 403,000 seniors had earned income between $1 and $1,300 while, 403,000 had earned income of more than $1,300.[5] [37] In Mr. Gorham’s opinion, it was consistent with the principles of insurance to exclude indemnification for earnings loss after age 65 under an insurance program, due to the small percentage of people who have earnings after age 65 and given their earnings are much reduced. [38] Mr. Gorham pointed out that under other systems, such as in cases of wrongful dismissal or wrongful death, 65 or a lower age is assumed for retirement, following the practices set out in section 4330.05 to 4330.07 of the Canadian Institute of Actuarial Standards of Practice. He noted that Long Term Disability (LTD) policies also tended to cease at about age 65. [39] According to information Mr. Gorham received from the WSIB’s actuarial services department, 11.1% of workers injured after age 61are expected to receive LOE benefits up to the maximum time – age 65 or two years of benefits, whichever is later. [40] Mr. Gorham acknowledged that it was likely that the elimination of mandatory retirement would affect people’s decisions about retirement. He stated: However, even if the percentage of Canadians working after age 65 doubled over the next few years to about 40%, that would not of itself indicate that income replacement benefits after age 65 can be supported by insurance principles or by actuarial practice. One must also look at the median income level, the quantum of the potential lost earnings and the retirement behaviour of those who do continue to work after 65. For example, if the percentage working did double to about 40% but the medial earned income of $1,300 for seniors remained stable, there would be less than 20% of seniors with earned income of more than $1,300. In my opinion, that would not be sufficient to support providing an indemnity against lost earnings. [41] In reference to Professor Klassen’s report, Mr. Gorham observed that while many Canadians express an interest in working past age 65 in surveys, the reality is that relatively few do. While there is a trend to more Canadians working later, the percentage is still relatively small and much smaller than shown by their intent in surveys. [42] With respect to section 43(1)(c) of the WSIA, Mr. Gorham pointed out that this is the provision that does allow for LOE benefits past the age of 65, simply with a two year limit. In Mr. Gorham’s view, the termination of compensation benefits is a necessary feature of the WSIA’s compensation system for LOE. He submitted that, if there is no objective test for whether a person would have been working, then the possibility of a person incorrectly stating that they would have been working is too great to provide proper insurance. This applies regardless of whether the person honestly believes that they would have been working or provides misinformation. He agreed that there will be some “people who are denied benefits where they actually would have been working in the absence of injury… We can state that based on the available data they will be a small percentage of the senior population.” [43] In conclusion Mr. Gorham made these points: It would be ideal if the WSIA could be designed to provide compensation to all injured seniors for as long as they would have continued to work in the absence of their injury and for no longer, without any limitation. Practically, that cannot be done. … To provide benefits for loss of wages for more than a short time after age 65 is very likely not an indemnification for lost earnings. While a specific person might actually have worked well past age 65 in the absence of a disability, the vast majority of Canadians would not. Providing income indemnification where the basis for loss is subjective in nature is not sound insurance or actuarial practice. Providing income indemnification where statistic indicate there is a small probability that a claimed loss actually exists is not sound insurance or actuarial practice. (c) Approach to section 15(1) [44] The Panel in Decision No. 1529/04 has provided a useful and up to date summary of the section 15 Charter authorities. The Majority refers to the following summary from that decision: There are three leading Supreme Court of Canada decisions to consider in the interpretation of the equality provision of the Charter: Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143 [“Andrews”]; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [“Law”]; R. v. Kapp, [2008] 2 S.C.R. 483 [“Kapp”]. These three decisions articulate the Supreme Court’s evolving approach to determining whether an impugned law or government action results in “substantive discrimination” within the meaning of s. 15 of the Charter. In Andrews, McIntyre J., for the majority, acknowledged that not all differential treatment necessarily represents discrimination, and equal treatment of unequal groups may in fact be discriminatory. McIntyre J. observed: “…mere equality of application to similarly situated groups or individuals does not afford a realistic test for a violation of equality rights.” McIntyre J. also cautioned against the application of a rigid test, in favour of a purposive approach, reasoning in part as follows: Consideration must be given to the content of the law, to its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application. The issues which will arise from case to case are such that it would be wrong to attempt to confine these considerations within such a fixed and limited formula. It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. 15 of the Charter. It is, of course, obvious that legislatures may -- and to govern effectively -- must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures. The classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society. As noted above, for the accommodation of differences, which is the essence of true equality, it will frequently be necessary to make distinctions. What kinds of distinctions will be acceptable under s. 15(1) and what kinds will violate its provisions? After reviewing three possible approaches to the equality provision, McIntyre J. found that the following approach most closely resembled the purposes of s. 15 of the Charter and definition of discrimination: A third approach, sometimes described as an "enumerated or analogous grounds" approach, adopts the concept that discrimination is generally expressed by the enumerated grounds. Section 15(1) is designed to prevent discrimination based on these and analogous grounds. The approach is similar to that found in human rights and civil rights statutes which have been enacted throughout Canada in recent times. […] The analysis of discrimination in this approach must take place within the context of the enumerated grounds and those analogous to them. The words "without discrimination" require more than a mere finding of distinction between the treatment of groups or individuals. Those words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage. McIntrye J. noted that, in assessing whether a complainant's rights have been infringed under s. 15(1), it is not enough to focus only on the alleged ground of discrimination and decide whether or not it is an enumerated or analogous ground. In summary, “A complainant under s. 15(1) 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.” Ten years later, in Law, the Supreme Court elaborated upon its approach to the Charter equality guarantee. Iacobucci J. delivered the judgment for the Court. Iacobucci J. began by noting that the concepts of equality and discrimination were at the heart of section 15 and reviewed the concepts reviewed in Andrews. In Law, Iacobucci J. set out a summary of general guidelines for approaching s. 15(1) equality claims, but cautioned against viewing them as a “strict test.” The guidelines were laid out in part as follows (beginning at paragraph 88): General Approach (1) It is inappropriate to attempt to confine analysis under s. 15(1) of the Charter to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach. (2)The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues: (A) whether a law imposes differential treatment between the claimant and others, in purpose or effect; (B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and (C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee. The first issue is concerned with the question of whether the law causes differential treatment. The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1). (3)Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries: (A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and (C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? Purpose (4) In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. The existence of a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1) is essential in order to found a discrimination claim. The determination of whether such a conflict exists is to be made through an analysis of the full context surrounding the claim and the claimant. Iacobucci J. continued to set out four contextual factors to consider in determining whether s. 15(1) of the Charter has been infringed: (A) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of “discrete and insular minorities” should always be a central consideration. Although the claimant’s association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed. (B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. Although the mere fact that the impugned legislation takes into account the claimant’s traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant’s actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant’s actual situation. (C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society. and (D) The nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1). More recently, in Kapp, the Court revisited the approach to equality rights under the Charter. Chief Justice McLachlan and Abella J., speaking for the Court on this issue, described Andrews as a template for the Supreme Court’s approach to s. 15, “a template which subsequent decisions have enriched but never abandoned.” The Court also acknowledged that difficulties had arisen from the attempt in Law to employ human dignity as a legal test, although there was no doubt that human dignity is an essential value underlying the s. 15 equality guarantee. In Kapp, the Court refined the test as follows: The template in Andrews, as further developed in a series of cases culminating in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, established in essence a two-part test for showing discrimination under s. 15(1): (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? These were divided, in Law, into three steps, but in our view the test is, in substance, the same. At paragraph 24 of the Kapp decision, the Court noted that the factors in Law should not be interpreted as legislative dispositions, but rather, as a way of focusing on the “central concern” of s. 15, that is, “combating discrimination, defined in terms of perpetuating disadvantage or stereotyping.” As TCO noted, the majority comments in Kapp were obiter dicta, since the majority concluded that the impugned discriminatory government program met the requirements of s. 15(2) of the Charter. Nonetheless, obiter dicta from the Supreme Court, provides guidance to lower courts and certainly must be considered by this Tribunal. In two subsequent decisions in which a breach of the section 15 equality guarantee has been addressed, the Supreme Court has applied the streamlined two-part Kapp test.[6] In Ermineskin Indian Band and Nation v. Canada, [2009] SCC 9, the Supreme Court returned to R. v. Turpin, [1989] 1 S.C.R. 1296, in considering whether certain provisions of the Indian Act infringed s. 15(1) of the Charter. The Court emphasized the broad nature of the s. 15 inquiry (at paras. 193-194): The question of whether discrimination exists is to be determined with regard to context, looking beyond simply the legislation in question. In R. v. Turpin, [1989] 1 S.C.R. 1296, this Court stated: In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context. [p. 1331] This Court’s statement in Turpin signals the importance of addressing the broader context of a distinction in a substantive equality analysis. In Morrow v. Zhang, 2009 ABCA 215 (CanLII), the Alberta Court of Appeal reviewed the jurisprudence and concluded that the focus of the discrimination analysis should be directed to two concepts: the perpetuation of prejudice and disadvantage to members of a group on the basis of personal characteristics identified in the enumerated and analogous grounds, and stereotyping on the basis of these grounds that do not correspond to a claimant’s or group’s actual circumstances and characteristics. The Panel, therefore, concludes that the two-part Kapp test is applicable, while still allowing for consideration of the contextual factors highlighted in Law, where appropriate. In addition, as noted in Ermineskin, it is appropriate to consider the larger social, political and legal context in which to situate the s. 15 analysis. The Panel is mindful of the Supreme Court’s caution in Kapp against taking an overly technical approach to s. 15. In summary, to establish that the impugned policy violates s. 15 of the Charter, the appellant must show: 1. The policy creates a distinction based upon an enumerated or analogous ground; and 2. The distinction is discriminatory, in that it perpetuates disadvantage or stereotyping. Finally, the Panel notes that the burden is on the claimant, but it not always necessary to adduce evidence to establish an infringement of s. 15. The principle was summarized in Law as follows: Although the s. 15(1) claimant bears the onus of establishing an infringement of his or her equality rights in a purposive sense through reference to one or more contextual factors, it is not necessarily the case that the claimant must adduce evidence in order to show a violation of human dignity or freedom. Frequently, where differential treatment is based on one or more enumerated or analogous grounds, this will be sufficient to found an infringement of s. 15(1) in the sense that it will be evident on the basis of judicial notice and logical reasoning that the distinction is discriminatory within the meaning of the provision. (d) Use of comparator groups [45] As noted by Ms Zimmerman in her Tribunal Counsel Office submissions, the use of comparator groups was articulated in Andrews and later discussed in Law and in Hodge v. Canada (Minister of Human Resources Development).[7] She went on to note that criticism of the courts’ approach to comparator groups began to emerge. Critics suggested that the reliance on a single “correct” comparator group revived the formal approach to equity, rejected by the Supreme Court in Andrews as leading to an overly simplistic analysis.[8] [46] Ms Zimmerman also pointed out that the Supreme Court in Kapp noted that post-Law decisions appeared to have rested on a formal equity analysis, specifically by use of “an artificial comparator analysis focused on treating likes alike.” [47] Finally, she made reference to the fact that, in cases where the Supreme Court has considered whether an infringement of section 15(1) has occurred since Kapp, there was an absence of analysis regarding the choice of an appropriate comparator group. Ms Zimmerman submitted that, given the criticism of comparator groups and the move away from identifying a comparator group in recent Supreme Court decisions, it might not be necessary for the Panel to identify a comparator group. [48] It should be noted that the Appellant and the Attorney General were in agreement that the appropriate comparator would be disabled workers age 62 and under who suffer a loss of earnings as a result of a workplace injury, with the latter adding the provision the loss of earnings was for more than two years. Another comparator suggested by Tribunal Counsel Office was the one accepted by the Nova Scotia Workers’ Compensation Appeals Tribunal in Decision No. 2002-811-A.D. That Panel identified the appropriate comparator group as the “group of workers for whom eligibility to earning-replacement benefits continues because they have not reached the age of 65.” That Panel acknowledged that section 37(10) of the Nova Scotia Workers’ Compensation Act distinguished between workers over the age of 63 who have suffered an earnings loss, and those workers who suffer an earnings loss while under the age of 63. However, in that case, the Panel found that the basis for the challenge lay in the fact that benefits were terminated because of age and not because workers injured over the age of 65 were entitled to limited benefits.[9] (e) Position of the parties on the section 15(1) argument (i) The Appellant [49] The Appellant referred to the two part test set out in Andrews. With respect to the first part of the test, the Appellant submitted that section 43(1)(c) created a distinction on an enumerated or analogous ground: that is, the worker was treated differently on the basis of age. The argument is that subsection 43(1)(c) of the WSIA draws a distinction by according rights to individuals under the age of 63 which it fails to accord to individual over the age of 63. Accordingly, loss of earnings benefits to workers under the WSIA are “diminished or severely curtailed for older disabled workers.” [50] With respect to the second part of the test set out in Andrews – does the distinction create a disadvantage by perpetuating prejudice or stereotypes, the Appellant submitted this test is also answered in the affirmative. In the Appellant’s view, by limiting the duration of benefits to older disabled workers, the WSIB is perpetuating the stereotype that they are no longer useful members of the labour force. The Appellant submitted the WSIA implicitly suggests that individuals age 63 and over should not be working and there is no need to compensate them for injuries. Given that mandatory retirement was abolished in Ontario in December of 2006, the age restriction of the WSIA is arbitrary. The Appellant submitted that many older people plan to work past age 65 for financial reasons and by capping benefits based on age, the WSIA creates a distinction that is not only arbitrary but acts to perpetuate a stereotype about older disabled workers and does not truly account for their needs and circumstances. [51] The Appellant went on to address the relevant point of view in assessing a claim of discrimination. As stated by L’Heurex Dube in Egan v. Canada [1995], 2 S.C.R. 513, the relevant point of view (when assessing whether a law is discriminatory) is that of a reasonable person, dispassionate and fully appraised of the circumstances, possessed of similar attributes to, and under similar circumstances, as the claimant. [52] The Appellant submitted that, given the reaffirmation of the Andrews test, the trial judge’s decision in Zarestski[10] remains a useful precedent. In that case, the worker was injured and received loss of earnings benefits in Saskatchewan, where the applicable Act specified that compensation was payable as long as the loss of earnings continued or until the age of 65, whichever came first. The worker's benefits ceased when he was 65 and he appealed, claiming he would have continued to work. The trial judge found: When one takes into account the analysis undertaken and applied by the Supreme Court of Canada…and compares that to the various tests…one is driven to conclude, as I have, that s.68(2) does violate s.15(1) of the Charter. Clearly, the effect if s.68(2) is to deny loss of earnings benefits to a group or class of workers identified solely by virtue of age (namely 65). It is common ground to all that for most claimants this income loss benefits provides the most substantial monetary benefit the Act provides. The plaintiff, John Zarestski, was a member of this group. He lost the income replacement benefit by virtue of the application of s.68(2) because and solely because of his age – 65. [53] The Appellant submitted that the section 15(1) analysis in Zarestski was correct, on point, and in keeping with the Andrews/Kapp test and, thus, should be followed. Accordingly, subsection 43(1)(c) constitutes a violation of section 15(1) of the Charter. (ii) The Respondent [54] The Respondent submitted that the Charter claim should be dismissed because section 43(1)(c) did not violate section 15(1) - the provision does not deny the worker or his group a benefit or advantage and does not perpetuate disadvantage or stereotypes; rather, it recognizes the actual circumstances and provides him and his group LOE benefits that are not available to other workers under the WSIA. The employer took the position that the constitutional challenge to section 43(1)(c) cannot serve as a means of launching a collateral challenge to other provisions of the WSIA that have not been challenged in the proceeding. [55] The employer based its arguments on the three broad inquiries mapped out by the Court in Law determined by considering the four contextual factors found in that decision. The employer submitted the WSIA provision did not “impose a differential treatment between the claimant and others in purpose and effect.” When considering the subsection within the whole of section 43, it could be seen that all payments of LOE terminate at age 65 for all workers save for those who were aged 63 or older on the date of injury. In fact, section. 43(1)(c) operates to exempt workers 63 years or older from the age 65 cap, thus providing them with a benefit not available to workers less than age 63. [56] The employer noted that, under the predecessor Workers' Compensation Act, future economic loss (FEL) benefits ceased at age 65 for all workers. Section 43(1)(c) takes into account the actual circumstances of workers who continue to work (potentially beyond age 65) and grants them up to two years of earnings replacement. If one were going to use the comparator group of injured workers less than 63 years of age on the date of injury, then it would need to be acknowledged that the worker was entitled to benefits not open to the comparator group: LOE benefits beyond the age of 65. [57] The employer did acknowledge that the impugned provision makes a distinction based on age. However the distinction must deny a benefit or impose a burden in order to contravene section 15(1). The employer suggested that the WSIA provision allows workers aged 65, 75 or 85 to receive LOE benefits if they are injured while working and, therefore, the impugned provision grants, rather than denies the worker and his group LOE benefits past the date when LOE benefits terminate for other workers, including those 62 or younger. The employer argued that a reasonable person would conclude that section 43(1)(c) provided an ameliorative benefit. [58] If the Panel were to find that section 43(1)(c) did deny the worker and his group a benefit, the employer took the position that the age distinction was not substantively discriminatory within the meaning of the Charter. The Panel was required to “look at the reality of the situation and assess whether there has been discriminatory treatment having regard to the purpose of section 15(1), which is to prevent the perpetuation of pre-existing disadvantages through unequal treatment.” The Respondent submitted that the WSIA reformed the earlier legislation and allowed workers past the age of 65 who were working and then injured to receive LOE benefits for a set amount of time. (iii) The AG’s position [59] Broadly, the AG took the position that the payments under section 43(1) were meant to replace the actual lost earnings of injured workers and limiting such compensation benefits past the age of 65 was consistent with the principles of insurance and based on actuarially sound practice. The AG noted that, as described by Professor Weiler, a loss of earnings cannot be for life and should be replaced by retirement income benefits at an age reflecting typical retirement. The AG argued that if an employee were to receive loss of earnings payments for life, even though they would have retired (like most workers) by age 65, they would be overcompensated, in the sense they would be paid for wages they would not otherwise have earned. [60] The AG submitted the only actuarial evidence before the Tribunal establishes that 65 is and remains an actuarially sound age at which to estimate the worker will retire, as only a small percentage of Canadians continue to work after age 65. The AG further submitted the Appellant’s expert witness is a political scientist, whose evidence was entirely speculative and who suggested that the elimination of the age limit in section 43 would be the “most effective public policy.” The AG argued that Professor Klassen offered no recommendation or evidence with respect to how loss of earnings benefits could or should be terminated in the absence of an age limit. This stood in contrast to the evidence of Mr. Gorham who demonstrated how, applying commonly accepted principles of insurance, “it was appropriate to base wage loss compensation on statistics derived from a large group of working Canadians rather than on the prediction of an individual.” In reviewing Mr. Gorham’s evidence, the AG concluded that, if the age limit on loss of earnings coverage for workers injured at work were to be eliminated, the result would be that such benefits would most likely last for life, even though almost all workers do, in fact, retire. Such a result could not be justified on either actuarial or public policy grounds. [61] The AG then considered other jurisdictions and submitted that all provinces limit loss of earnings benefits beyond 65 and 9 out of 10 replace loss of earnings benefits with loss of retirement income at age 65. He acknowledged that British Columbia provides loss of earnings benefits past 65 if the Board is satisfied that the worker would not retire after reaching 65 years of age. However, the AG went on to note that Board policies require a worker to present independent verifiable evidence to the effect that s/he would not have retired at age 65. This has been held to include information from the identified employer confirming intent to employ the worker after age 65 or from the pre-accident employer confirming a later normal retirement age for workers in the same occupation. The assertion that one intended to work past age 65 has been held to be insufficient to overcome the presumption of the B.C. legislation. [62] With respect to the test as summarized in Law, the AG argued that replacing loss of earnings benefits with payments for lost retirement income when the actuarial evidence is that workers are most likely to be retired is consistent with the overarching purpose of the WSIA regime and does not amount to an arbitrary exclusion of a particular group. The AG also argued that the Appellant had failed to show he was being denied a benefit that is applied to others under the terms of the WSIA, in that no other worker is entitled to a particularized assessment of whether and until what date he would have continued to receive employment income. [63] The AG submitted that the age distinction used in section 43 of the WSIA was a necessary proxy for retirement. The AG agreed that there was a limited distinction on the basis of age as workers over 63 can receive only two years of benefits and workers under 63 can receive benefits for a longer period of time. The AG noted that workers age 63 and older had the benefit of working longer and that being injured at a younger age could not be seen as an advantage. [64] Further, the AG posited that age is set apart from all the other grounds of discrimination in section 15(1) in that everyone ages. He quoted Hogg: “a minority defined by age is much less likely to suffer from hostility, intolerance and prejudice of the majority than is a minority defined by race or religion or any other characteristic that the majority never possessed and never will.” [65] To the extent that section 43(1) treats persons over age 65 differently from those under 65, the AG argued that the Appellant had failed to establish that such a distinction was substantively discriminatory as opposed to being a distinction consistent with actuarial principles. Section 43(1) did not impose restrictions or deny benefits on account of presumed or unjustly attributed characteristics and was thus not likely to deny essential human worth and be discriminatory (Law, para. 70). To buttress his argument, the AG cited Laronde v. Workplace Health, Safety and Compensation Commission of New Brunswick, [2007] NBCA 10 at para 26: It is obvious that the impugned legislation is not based on misguided to unfounded stereotypical attitudes or assumptions. For example, the legislation is not based on the misguided assumption that those 65 or over are incapable of working or that retired people need less money to survive. Rather, the legislative provision operates on the assumption that most people retire at age 65. The record before the Appeals Tribunal and this Court supports that factual inference. Hence, there is a correlation between the challenged distinction and the circumstances of those who reach age 65 and were in receipt of compensation benefits. The evidence indicates that the purpose of s.38.2(5), far from being stereotypical or arbitrary, corresponds to what is happening in the workplace. [66] The AG argued that the substantive issue of limiting loss of earnings benefits past age 65 was the same in Laronde as in the instant case. He submitted that the Appellant’s attempt to distinguish the case by limiting the challenge to section 43(1)(c) was illusory: “if [the Appellant] accepts for the purpose of the appeal that the general age restriction of section 43(1)(b) is not discriminatory, then it cannot be discriminatory to extend the loss of earnings benefits for an extra two years for those workers who are 63 years of age or older at the time of their injury.” [67] Moreover, as set out in Law, Parliament is entitled in appropriate circumstances to “premise remedial legislation upon informed generalizations without running afoul of section 15(1) of the Charter and being required to justify its position under section 1” (para. 106). This was the case with the sound actuarial assumption that most workers retire at age 65, even if a few do not. The AG referred to Gosselin v. Quebec (Attorney General), [2007] 4 S.C.R. 429 at para.57: All age-based legislative distinctions have an element of this literal kind of “arbitrariness.” That does not make invalidate them. Provided that the age chosen is reasonably related to the legislative goal, the fact that some might prefer a different age – perhaps 29 for some, 31 for others – does not indicate a lack of sufficient correlation between the distinction and the actual needs and the circumstances here. Moreover, there is no evidence that a different cut-off age would have been preferable to the one selected.[11] [68] Ultimately, the AG noted that such leeway was held by the Supreme Court to be particularly applicable in the case of the complex balancing that occurs in the design of workers’ compensation regimes. In Nova Scotia (Workers’ Compensation Board) v. Martin [2003] 2.S.C.R. at para. 82, the Court noted that: …government benefits or services cannot be fully customized. As a practical matter, general solutions will often have to be adopted, solutions which inevitably may not respond perfectly to the needs of every individual. This is particularly true in the context of large-scale compensation systems, such as the workers compensation scheme under consideration. Such systems often need to classify various injuries and illnesses based on available medical evidence and use the resulting classifications to process the claims made by beneficiaries. This approach is necessary, both for reasons of administrative efficiency and to ensure processing large numbers of claims. In addition, the beneficiaries themselves benefit from the reduced transaction costs and speed achieved through such techniques, and without which large-scale compensation might well be impossible. The state should therefore benefit from a certain margin of appreciation in this exercise. [69] In the AG’s view, this analysis applies to the facts of the instant case. The fact that section 43(1)(c) actually provides loss of earnings benefits for a maximum of two years to workers over age 63 demonstrates that to the extent the legislation causes disadvantage it does not do so in manner that perpetuates prejudices or stereotyping. [70] In closing, the AG noted the final factor to be considered when determining whether a legislative distinction is substantively discriminatory is “whether the challenged distinction was designed to improve the situation of a more disadvantaged group.” In this case, he argued that by limiting loss of earnings benefits at age 65, the WSIA seeks to maximize the benefits for loss of earnings suffered by all workers. Eliminating the age limit would have the effect of potentially reducing the loss of earnings benefits paid to a younger worker who is injured for a significant portion of his or her working life, in order to provide a longer duration of loss of earnings benefit to an older worker who, from an actuarial perspective is likely to retire, and who has had the benefit of a lifetime of full wage earnings and is frequently (as in this case) eligible for significant pension benefits. (iv) Withler v. Canada (Attorney General), [2011] S.C.J. No. 12 [71] In March of this year, the Supreme Court issued its judgment in the above case. That decision is of interest in these proceedings because it contains the fullest discussion of the use of the comparator to date and does so in relation to allegations of discrimination on the basis of age. It also provides a summary of the framework for considering a section 15 challenge. [72] In the Withler case, the appellants argued the Reduction Provisions found in the package of survivor benefits offered under both the Public Service Superannuation Act and the Canadian Forces Superannuation Act discriminate on the basis of age. Specifically, the value of the benefits is reduced by ten percent for every year by which the plan member exceeds age 60. The appellants argued it was arbitrary to reduce the supplementary death benefits on the basis of age because most if not all persons over 65(or 60) need that benefit and that need increases over time. [73] When this case came before the British Columbia Court of Appeal, Ryan J. A. commented for the majority as follows in dismissing the appeal: This case demonstrates the difficulty that arises when one attempts to isolate for criticism a single aspect of a comprehensive insurance and pension package designed to benefit an employee’s different needs over the course of his or her working life… the comprehensive plan, while not a perfect fit for each individual, did not meet the hallmarks of discrimination given that it was a broad-based scheme meant to cover the competing interests of the various age groups gathered by the plan. [74] In the decision by the Supreme Court of Canada, Chief Justice McLachlin and Abella R, (writing for the Court) summarized that substantive inequality may be established by showing either that the impugned law perpetuates prejudice and disadvantage to members of a group on the basis of personal characteristics within section 15(1) or by showing that the disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group. She then noted: Without attempting to limit the factors that may be useful in assessing a claim of discrimination, it can be said that where the discriminatory effect is said to be the perpetuation of disadvantage or prejudice, evidence that goes to establishing a claimant’s historical position of disadvantage or to demonstrating existing prejudice against the claimant group, as well as the nature of the interest that is affected, will be considered. Where the claim is that a law is based on stereotyped views of the claimant group, the issue will be whether there is correspondence with the claimant’s actual characteristics or circumstances. Where the impugned law is part of the a larger benefits scheme, as it is here, the ameliorative effect of the law on others and the multiplicity of interests it attempts to balance will also colour the discrimination analysis. ….The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group, the result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is in order to ameliorate the actual situation of the claimant group. It follows that a formal analysis based on comparison between the claimant group and a “similarly situated” group does not assure a result that captures the wrong to which a s.15(1) is directed – the elimination from the law of measures that impose or perpetuate substantial inequality. What is required is not a formal comparison with a selected mirror comparator group, but an approach that looks at the full context, including the situation of the claimant group and whether the impact of the impugned law is to perpetuate disadvantage or negative stereotypes about that group. [75] The judgment then turned its attention to concerns with the use of mirror comparator groups. The Court itemized the areas of concern with this process and they can be summarized as follows: 1. The definition of the comparator group determines the analysis and the outcome. 2. The focus of a precisely corresponding group becomes a search for sameness rather than a search for disadvantage. 3. Allowing a mirror comparator group to determine the outcome overlooks the fact that a claimant may be impacted by many interwoven groups of discrimination and, confining the analysis to a rigid comparison may fail to account for more nuanced experiences of discrimination. 4. Finally, finding the “right” comparator group places an unfair burden on claimants. [76] Justices McLachlin and Abella concluded: In summary, a mirror comparator group analysis may fail to capture substantive inequality, may become a search for sameness, may shortcut the second stage of the substantive equality analysis and may be difficult to apply. In all these ways, such an approach may fail to identify – and, indeed, thwart the identification of – the discrimination at which s.15 is aimed. [77] The Court then proceeded to set out its analysis of the proper approach to comparisons. It noted that the role of comparison was to establish a distinction, so that when a claimant asserts that he or she is denied a benefit that others are granted that falls within the enumerated grounds, it is therefore unnecessary to pinpoint a particular group that precisely corresponds to the claimant group, provided that the claimant establishes a distinction based on one or more enumerated grounds. [78] At the second step, the analysis becomes an inquiry into whether the law works substantive inequality in a way that does not correspond to actual characteristics or circumstances. The Court suggests that, at this step, comparison may bolster the contextual understanding of a claimant’s place within the legislative scheme. The decision concludes: 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 broad context of the scheme as a whole. Whom did the legislature intend to benefit and why? In determining whether the distinction perpetuates prejudice or stereotypes a particular group, the court will take into account the fact that such programs are designed to benefit a number of different groups and necessarily draw lines on factors like age. It will ask whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme. Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required. Allocation of resources and particular policy goals that the legislature may be seeking to achieve may also be considered. [79] In considering the merits, the Supreme Court in Withler found no basis on which to fault the trial judge’s contextual analysis or that of the majority of the Court of Appeal. The Court did consider the dissent of Rowles J.A. The dissenting judge relied on the comparator approach and found that the mirror group was comprised of spouses who received both an unreduced supplementary benefit and were eligible for a survivor’s pension. On this basis she concluded that the claimants’ reduced benefit treated then unequally. [80] The Supreme Court disagreed: In our respectful view, Rowles J.A.’s analysis illustrates how reliance on a mirror comparator group can occlude aspects of the full contextual analysis that s. 15(1) requires. It de-emphasized the operation of the Reduction Provisions on the death benefit in the context of the entire plan and lifetime need of beneficiaries. The result was a failure to fully appreciate that the package of benefits, viewed as a whole and over time, does not impose or perpetuate discrimination. For the reasons discussed earlier, this approach cannot be sustained. [81] This judgment was released subsequent to the hearing days in the instant case before the Tribunal. Mr. Horner, from the AG’s office, wrote to the Tribunal and asked that the Withler decision be included in the materials considered by the Panel. Ms Gianfelice, from the Office of the Worker Adviser, then responded that this should not occur without submissions on the case being obtained from the parties. Accordingly, because of its relevance and clear comments of the use of comparator groups, the Panel directed Tribunal Counsel Office to obtain the parties’ submissions on the Withler decision. We also asked Tribunal Counsel Office to provide its views on the Withler case. [82] The parties all agreed that the Withler case demonstrated that a strict comparator group was not necessary or desirable. Tribunal Counsel Office suggested that the Supreme Court’s decision in Withler was relevant and applicable to this appeal for the following reasons: 1. it clarifies the role of comparators in a s.15(1) analysis; 2. it emphasizes the importance of considering the purpose of the benefits scheme as a whole when determining whether a provision within the scheme results in substantive discrimination. [83] Tribunal Counsel Office ended its submissions by stating: …the Withler decision is useful in that it provides clarification regarding the proper role of comparators in both stages 1 and 2 of a s.15(1) discrimination analysis. The decision puts an end to the requirement to establish a “mirror” comparator group at stage 1. It clarifies that as long as the claimant establishes a distinction based on one or more enumerated or analogous grounds, the claim should proceed to stage 2. At stage 2, the decision reiterates that a contextual approach is to be followed in order to determine whether the distinction results in disadvantage by perpetuating prejudice or stereotyping. While the relevant contextual factors to consider at stage 2 of the analysis will vary depending on the circumstances of the case, in a case involving a benefits scheme, the Court suggests that focus will typically be on the purpose of the provision that is alleged to discriminate, viewed in the broader context of the scheme as a whole. [84] In her correspondence dated May 18, 2011, Ms Gianfelice argued that the Withler case supported a contextual understanding of the impugned section. In the case before us, that would signify a clear understanding of the nature of the compensation system and its unique blend of private and public law that borrows from tort law, insurance law and social welfare legislation. She pointed out there were several key distinctions between private insurance schemes and workers’ compensation: workers’ compensation is compulsory; eligibility criteria and benefit levels are set by the Legislature; workers’ compensation is provided exclusively by a public agency; workers’ compensation eliminates employers’ legal liability for workplace accidents rather than providing indemnification; workers are stakeholders in the system; workers’ compensation embodies a number of non-market values that are incompatible with private insurance; and workers’ compensation is based on collective liability rather than individual coverage based on an individual assessment of cost and risk. Ms Gianfelice submitted that it was within the context of the broader purpose of the Act as a whole that section 43(1)(c) must be understood as arbitrarily limiting loss of earnings based on age. [85] While she acknowledged that Withler found it appropriate to consider the allocation of resources, this must be done in the context of the broader scheme. In Withler, the benefit at issue was a supplementary benefit, whereas in the instant case, loss of earnings is the main benefit provided to injured workers under the WSIA. [86] Ms Gianfelice argued that, whereas in Withler, the Court noted that the surviving spouses were in good financial shape, the evidence before this Panel was that the worker's $25,126 income in 2006 was less than ¼ of his $70,975 annual wages in 2002. (The Majority notes that the percentage is incorrect; the worker's income in 2006 was slightly more than 1/3rd of his 2002 wages). [87] Ms Gianfelice also submitted that Withler mandates that consideration be given to the intersectionality of age with disability. She suggested that it was the effects of the worker's first compensable injury (and the resulting loss of income and pension contributions during the years he was not at work) that provided the financial incentive to work beyond age 65. As the re-employment rights of the WSIA do not apply to older workers, this eliminates one of the recognized best options for a successful return to work. In conclusion Ms Gianfelice submitted the Court’s decision in Withler supports the worker's Charter challenge to the age-based limitations found in section 43(1)(c) of the WSIA; freed from the mirror group approach, it was easier to focus on the question of substantive equality. She argued that with this in mind, the impugned section perpetuates disadvantages and stereotypes, thereby violating the equality provisions of the Charter. [88] In correspondence dated May 17, 2011, the employer agreed that, flowing from the Withler decision, the Tribunal should not identify a comparator group before engaging in the two stage substantive Charter analysis. The employer submitted that the first stage of the Charter analysis, used to establish a distinction, also requires that the claimant is denied a benefit that others are granted or carries a burden that others do not carry. The employer submitted that while the worker was treated differently by reason of age, he was not denied a benefit. In fact, the impugned section allows workers aged 63 or older the opportunity to receive benefits at an age that younger workers cannot: loss of earnings benefits up to and beyond age 65. In contrast, the claimants in Withler were burdened with the reduction of their supplementary benefits, thereby establishing prohibited distinction at the first stage of the Charter analysis. The employer argued this was not accomplished in the instant case and, therefore, the worker's case should be dismissed at this stage of the analysis. [89] If the Panel were not convinced by the above, the employer argued that the distinction did “not work substantive inequality by perpetuating disadvantages or prejudices, or by stereotyping in a way that does not correspond to actual characteristics or circumstances” (as set out in the Withler decision at paragraph 65). The employer submitted the purpose of the Act was not to restore the worker to the position he would have been in but for the injury (as claimed by the worker) but to “provide compensation and other benefits to workers…” This section 43(1)(c) does by providing workers 63 years of age older with two years of LOE benefits if applicable, whether the worker is 65, 70 or 80. The employer submitted that a statutory benefit must, out of legislative policy and administrative necessity eschew case-by-case determination. In this case, the impugned section reasonably addresses the needs of older workers and provides a bridge to other income streams (retirement pensions, OAS and CPP). [90] In correspondence dated May 18, 2011, Mr. Horner, for the AG, noted that Withler confirmed a contextualized approach to assessing a discrimination case and that such accorded with the AG’s previous submissions. In Mr. Horner’s view, a contextual analysis, as set out in Withler, “must take into account the particular benefit scheme’s obligations to make general distinctions and whether the criteria used, when viewed contextually, perpetuate prejudice or negatively stereotype the individuals.” Mr. Horner pointed out that, as with the pension benefit legislation in Withler, the WSIA is “designed to benefit a number of different groups and necessarily draw lines on factors like age” (Withler at para 67). Further, there is not necessarily perfect correspondence between the benefit program and the actual needs of an individual. [91] Lastly, Mr. Horner noted a specific factual finding of the Withler trial judge was that “it cannot be said that the majority of elderly Canadians are a disadvantaged group compared to other age groups.” Mr. Horner, while acknowledging that the Supreme Court did not refer expressly to this finding, did not rebut it and, otherwise, relied extensively on the trial judge’s reasoning. Mr. Horner concluded by stating the Court’s analysis in Withler confirmed the AG’s position that a full, contextual analysis of the provisions at issue in the Tribunal case revealed that any distinctions made on the basis of age were not substantively discriminatory but, rather, corresponded to the needs and circumstances of all workers who rely upon a workers’ compensation regime based on actuarially sound principles of insurance. (v) The Majority’s findings on the section 15(1) Charter challenge [92] As noted at the outset of this decision, the Panel was not able to come to a consensus on the Disposition of the appeal before us. Consequently, the findings in this section need to be understood solely as the findings of the Majority as does any reference to “we” in the setting out of the analysis, findings and conclusions. The Dissent is attached. [93] We have based our analysis on the approach set out in Withler: a contextual analysis that addresses the two-part test but is one that does not rely on a mirror comparator group. [94] Before commencing the analysis proper, the Majority wishes to acknowledge the depth and breadth of work put into this appeal by the parties. The parties called evidence; made detailed submissions and provided extensive documentation in support of their respective positions. This decision cannot and does not repeat all the evidence heard, submissions proffered, or documentation reviewed. The Majority recognizes that the parties each provided expert evidence, made extensive submissions and relied on considerable documentation in putting forward their respective views. We have attempted, within the limits of practicality, to set out each side’s position in fair and reasonable detail. While it was not possible to summarize all the evidence before it, the Majority would assure the parties that all evidence was considered and weighed in its final determination. [95] The employer and the AG have argued that the WSIA operates as an insurance scheme. The Office of the Worker Adviser originally took the position that workers’ compensation was an insurance scheme for employers and social benefits program for workers. The Vice Chair in his dissent has adopted this approach. In her most recent correspondence, Ms Gianfelice has taken the position that the workplace insurance plan is a hybrid system, with aspects of a tort system, a social benefits program and, an insurance system all combined. The majority would point out that whether one characterizes it as a social benefits or insurance scheme, it is a legislated government program subject to the Charter. To the extent that properly characterizing the scheme under discussion enhances one’s understanding of the contextual aspects, the majority will discuss the nature of the system and how it has framed our approach. [96] The Majority finds that the workplace insurance plan operates primarily as an insurance scheme. We acknowledge that it operates under the aegis of the provincial government for the public good and can be distinguished from the for-profit underpinnings of private insurance. [97] The Majority thinks it of note that the governing legislation is called the Workplace Safety and Insurance Act and, in its previous incarnation, the Workers' Compensation Act. Neither title suggests a social benefits program. In the definition section of the legislation, we find the following: “insurance fund” means the fund described in section 96; (“caisse d’assurance”) “insurance plan” means the benefits and obligations set out in Parts III to IX; (“régime d’assurance”) [98] In other words, we have an insurance plan that pays out to injured workers, funded by employers. There is nothing in the Act that references social benefits. There is discussion as to when a worker can sue and in what circumstances an employer can obtain personal coverage. The Act provides a modified income replacement (along with permanent impairment awards, rehabilitation services and health care measures) for injured workers. The Act is funded by the employer community, and, in return, workers do not have the right to sue. Neither in Meredith nor in Weiler is there any suggestion that the Act was intended to be a social benefits system. Nor is there any suggestion anywhere that the legislation would be one thing for one group and something else for another. [99] We would note that workers’ compensation is just that: compensation for workers. Only injured workers (and their dependents) come within the scheme, with benefits received being tied to the actual wages a worker was earning at the time of injury. The scheme insures workers for actual wage loss, providing other ameliorative services in the process when appropriate. Such was the vision articulated first by Meredith and later reshaped by Weiler. Nowhere is there mention of it being any kind of universal disability program or a social benefits program. [100] With respect, therefore, the Majority concludes that the scheme under discussion is a workplace insurance plan, and that finding provides the general framework within which our analysis operates. [101] The challenge before us does not go to the whole of section 43(1): 43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker’s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. [102] Specifically, we are not required to address the fact that all injured workers (who were less than 63 years of age as of the date of injury) are cut off from loss of earnings benefits no later than the time at which they reach age 65. Nonetheless, it would be disingenuous to think that one could reasonably discuss subsection 43(1)(c), minus a consideration of the previous subsection. In fact, considerable time was devoted by the parties to the subject of 65, as the age at which income replacement benefits generally cease under the WSIA. [103] The Majority considers it helpful to consider the two Court cases directly on that point, albeit in different jurisdictions. [104] The cessation of loss of earnings benefits at age 65 has been the subject of challenge in New Brunswick and Saskatchewan. In Zarestski v. Saskatchewan. The Court found the worker had lost his income replacement benefits by virtue of the application of the impugned section (section 68(2) of the Workers' Compensation Act, 1979) and solely on the basis of his age - 65. Zarzeczny J. for the Saskatchewan Court of Queen’s Bench found that the distinction which the section created was based on the personal characteristics attributed to the worker. He referred to the Andrews decision and the analysis put forward by McIntyre J. …Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed. [105] Relying on the analysis set out in the Tereault-Goudry v. Canada (Employment and Immigration Commission) [1997] S.C.J. No.41 decision by the Supreme Court, Zarzeczny J. found the termination of benefits to injured workers over the age of 65 to be comparable and that section 68(2) did violate section 15(1) of the Charter. The Judge found the section was saved by a section 1 consideration. Zarzeczny J determined that the objectives of the Act were reasonable and rational objectives, proportional to the result. When turning to whether section 68(2) constituted a reasonable limit under section 1 of the Charter, Zarzeczny J. found: …it is not an objective of the Act to guarantee the payment of pre-injury income compensation to an injured worker for the rest of his or her life. Rather, the legislature has determined that the scheme of the Act should provide injured workers compensation based upon their loss reflecting normally expected and reasonably anticipated employment and benefit patterns. [106] Zarzeczny J. concluded that the transition from income loss replacement to pension loss replacement was discriminatory to persons of age 65 and over who might or would have continued to have worked, “this policy choice was the one the legislature chose to best reflect the objectives of the Act broadly applied to all categories and age groups of claimants.” [107] Conversely, in Laronde v. New Brunswick (Workplace, Health, Safety and Compensation Commission), the Court of Appeal found that section 38.2(5) of the New Brunswick Workers' Compensation Act - terminating loss of earnings payments to injured workers at age 65 - did not violate section 15 of the Charter. Robertson, J. A., writing for the Majority, proceeded with a contextual analysis following Law and Gosselin: Pursuant to both Law and Gosselin, we should be looking at the long-term and short-term purpose of the goal of the impugned provision to determine whether there is a correspondence between the ground of discrimination and the circumstances of the group making the allegation… …The immediate and long term purpose of s 38.2(5) of the Workers' Compensation Act is to ensure that compensation benefits are time-limited, thereby reflecting the policy decision that benefits seek only to replace lost wages due to a work-related injury and cannot be equated with an employer-funded pension plan for injured workers. [108] Robertson, J. T. concluded that the impugned legislation was not based on misguided or unfounded stereotypical attitudes or assumptions. He noted the legislation was not based on the misguided assumption that those age 65 and over are incapable of working or needed less money. Rather, he found that the legislative provisions operated on the assumption that most people retire at the age of 65 and the record before the Court supported that inference. Consequently, Robertson J. T. found that the impugned section was closely tailored to the reality of the affected group and there was no section 15 violation of the Charter. [109] It appears to us that the analytical thrust in both cases was not dissimilar, except that in Laronde, the argument was advanced at the first step and, in Zaretscki, at the second. We would also note that the Laronde decision was issued some 10 years after Zarestski and had, therefore, the benefit of considering the Supreme Court’s reasoning in Law and Gosselin. [110] As the law stands currently, there has been no successful Charter challenge to the cessation of loss of earnings benefits at age 65 in any Canadian jurisdiction. [111] While we are not addressing whether section 43(1)(b) operates in a discriminatory fashion, we have drawn factual findings in reference to the issue before us, based on the information before us. First, 65 is the age at which many people retire and the age at which they become eligible to draw from other source of income (CPP, OAS, pension plans, RRSPs, etc.). We accept Mr. Gorham’s evidence that most insurance plans (such as LTD) have an end date for benefits that are tied to a generally accepted retirement age (not a mandatorily imposed one) and that this age can still be accurately captured (at the high end) at 65. We also accept that an insurance plan could not reasonably pay benefits until the end of a person’s life. We note Professor Weiler’s observation that a loss of earnings for injured workers cannot be for life and should be replaced by retirement income benefits at an age reflecting typical retirement. These appear to us to be policy cornerstones of the workplace insurance plan. [112] We accept that the current statistical information as presented by Mr. Gorham (and not disputed per se by the Appellant) demonstrates that the majority of Canadians (around 90%) do retire by age 65. Further, for those who do continue to work past age 65, ½ of them earn under $1,300 a year, suggesting that those so employed are not motivated purely by income considerations. [113] We accept that, in the coming years, a number of factors may militate against a status quo acceptance of the above: the end of mandatory retirement, the percentage growth of people over age 65; the need for a skilled labour pool; and, current economic uncertainty. We accept Professor Klassen’s point that 48% of people currently believe they will work past age 65. However, that is not demonstrably the case at present. [114] The actuarial statistics indicate that most people retire at 65 years of age, a factual conclusion. Further, from a policy perspective, we do not find it unreasonable that the WSIA would choose the age at which most people retire as the age to end loss of earnings benefits for injured workers (in general). To the extent that this dovetails with the onset of other benefits, it makes sense from a public policy perspective and ensures that compensation benefits are paid out in a “financially and accountable manner.” This flows from a retrospective analysis in that statistical analysis of past behaviour reveals that most people retire by age 65. Whether a worker is injured at 25, 35, 45 or 60, we cannot know what would have happened absent injury, but the best evidence currently available suggests they would have retired by age 65. It is more than possible that this formula will overcompensate some workers who might have retired earlier, and undercompensate those who might have worked longer, but it accords with the best information available at present. We also accept that a large-scale insurance plan cannot tailor its provisions to the individual but must make overarching sense for those eligible for coverage. [115] Section 43(1)(b) does not require workers to retire at age 65 or suggest they should retire at age 65. 65 is the age at which workers become eligible for other benefits (CPP, OAS, private pension benefits and retirement income under the WSIA). To the extent that the age of 65 dovetails with retirement benefits from a number of sources, it is the age at which people – generally – do retire. [116] Mr. Gorham provided uncontradicted evidence that the overwhelming majority of working Canadians do retire at 65 and a sizable percentage retires earlier. Insofar as the WSIA operates as an insurance plan, it is not unreasonable that prospective payments will cease at an age based on retrospective analysis. That is, one cannot know with certainty in the present when an injured worker would have chosen to retire absent any injury; one can accurately know when the majority do retire and, with certainty over the time period from 2001 until 2006, when they did retire. People may indicate they would like to work until a certain age, but statistics dictate there is a gap between expressed preference and actual occurrence. [117] With the abolition of mandatory retirement, more people are choosing to work past age 65, but the number is still statistically small, although growing. What this signifies is that, for the present, 65 constitutes, with approximately 90% accuracy, the age at which people do retire or already have retired. Insurance schemes are premised on actuarial probabilities and these probabilities underpin the WSIA limiting LOE benefits after the age of 65. [118] Finally, the Majority notes that workers’ compensation legislation in other provinces has similar provisions concerning the termination of loss of earnings benefits at age 65. Quebec pays a reduced wage-loss benefit from age 65 to 68, but nothing thereafter. Alberta will pay wage loss benefits beyond age 65, if there is satisfactory evidence that the worker would have continued to work past that age. In British Columbia, a worker 63 years of age or older when injured generally receives two years of LOE benefits. However, if the Board is satisfied that the worker would have continued working past that point, the Board pays benefits to the date it determines the worker would have retired. [119] Understanding the policy implications and the statistical information driving the choice of age 65 as the time to terminate loss of earnings benefits under section 43(1)(b) is paramount for an understanding of section 43(1)(c). This is so because section 43(1)(c) carves out an exception to the age 65 provision for the termination of loss of earnings benefits. This provision, which was not present in the precursor Workers' Compensation Act, anticipates that some workers will be working at 63 or 73, or even at 83, and might be injured in the course of their work. This provision allows LOE benefits beyond age 65, but caps them at a two-year limit (from the date of injury). The provision therefore does consider the particular circumstances of a worker who is still in the work force at these ages and is injured at work. [120] It might seem attractive simply to accept the employer's position that this subsection cannot possibly be discriminatory because it confers an extra benefit - income replacement past age 65 - that is not present elsewhere in the Act. However, different fact situations call for different analyses. Arguably, for those workers between the age of 63 and 65, the section might arguably confer a benefit in that one might still expect them to retire at age 65 but nonetheless, they still would be eligible for benefits past 65. This analysis would not apply to the majority of persons captured under this subsection. It is practicable that prospective payments will cease at 65 based on a retrospective analysis for people who have not reached age 65; this argument cannot be imported for those who actually do work past age 65 and subsequently are injured. [121] While we take Mr. Gorham’s point that one cannot make reasonable and actuarial assumptions based on a belief system, no matter how honestly held, similarly, one cannot deny that workers who are injured past age 65 have, in fact, chosen not to retire at the expected age. Therefore, one cannot apply arguments based on the likelihood that they would have done so, when it is clear they did not. They are not part of the 90% of the population; they are part of the 10% and the expectations attached to the 90% who retire by age 65 do not apply to them. [122] In our view, subsection 43(1)(c) carves out an exception and we must consider the ramifications for that expressly captured group of individuals to assess whether there has been a section 15(1) violation of the Charter. In doing so, we will hew to the two-part test, most recently articulated in Withler. [123] Accordingly, as the first step, we ask ourselves whether the law creates a distinction that is based on an enumerated or analogous ground. We find it does. The impugned section does make a distinction on the basis of an enumerated or analogous ground, and this will “often occur in cases involving government benefits” (Withler, para 64). The section also denies a benefit it extends to others. The section limits loss of earnings benefits to those aged 63 years and older to a maximum of two years. Younger workers do not face the same time limitations. While we acknowledge the employer's position that the potential of two years’ LOE benefits beyond age 65 is not available to injured workers under age 63, the fact remains that the benefit itself is limited in a way not experienced by younger workers and it is restricted solely because of the worker's age at the time of injury. [124] Put simply, a 60-year-old construction worker (who cannot return to work as a result of a compensable accident) will receive five years of benefits, while a 65-year-old injured construction worker (who cannot return to work) will receive two years of benefits. As stated above, one cannot import the reasoning as to the expected age of retirement to the situation where someone is, in reality, working past that age. Accordingly, one cannot then use this as evidence that a benefit rather than a burden is being imposed. [125] This brings us to the second step: whether, having regard to the relevant context, the impugned law “perpetuates disadvantage or prejudice or stereotypes the claimant group” (Withler, para 70). And, by stereotype, we mean does it stereotype in a way that does not correspond to actual characteristics or circumstances. As set out in Withler: ...the contextual inquiry at the second step of the s. 15(1) analysis will typically focus on the purpose of the provision, viewed in the broader context of the scheme as a whole. Whom did the legislature intend to benefit and why? In determining whether the distinction perpetuates prejudice or stereotypes a particular group, the court will take into account the fact that such program are designed to benefit a number of different groups and necessarily draw lines on factors like age. It will ask whether the lines drawn are generally appropriate, having regard to the circumstances and the objects of the scheme. Perfect correspondence between a benefit program and the actual needs and circumstances is not required. Allocation of resources and particular policy goals that the legislature may be seeking to achieve may also be considered. [126] The Majority acknowledges that our decision focuses on income replacement and not a pension benefits program, but the general approach remains relevant. In the view of the Majority, section 43(1)(c) requires a different approach than that applied to the proceeding subsection of the WSIA. The impugned section deals with workers who have not retired at age 65 (or are close to that age when injured). Obviously, the broader policy choice of tying the closure of benefits to age 65 does not apply to these workers. The circumstances of workers actually employed beyond age 65 are difficult to quantify precisely because the bulk of workers retire at or before age 65. Statistically speaking, these workers are outliers and the statistics do not as readily capture their working habits or as accurately predict their expected retirement. [127] Does payment of two years of loss of earnings benefits correspond to the circumstances of a 65-year-old worker with a five-year contract who injures himself at the start of said contract? Do two years of benefits correspond to the circumstances of a 75-year-old worker who is injured a month before she planned to retire? Do two years of benefits correspond to the circumstances of an injured 64 year old worker who had no intention or working past age 65? Two years of benefits provides the same treatment for each of the above, but does it provide fair treatment for workers aged 63 and older? Can one talk about the needs of this group generally? Does this limitation of benefits perpetuate stereotypes or disadvantage the claimant group? [128] One way of answering this, as outlined by the AG and the employer, is to say that no one works forever. Further, as it is impossible to quantify the length of time people employed after the age of 65 will continue to work, a two year “bridge” of income replacement refutes any finding of substantive inequality. Two years’ income replacement is not insubstantial and allows the affected person time to put other plans in place for the transition to retirement. The two-year provision also accords with the Board's policy goals and allocation of resources in a generally fair approach for the group, rather than one tied solely to individual circumstances. [129] Another way of answering this has been articulated by the worker's representatives and by the Vice-Chair in his dissent. Ms Gianfelice noted that by limiting benefits for older injured workers to a maximum of two years of LOE benefits, the WSIA limits benefits for older workers even in circumstances when further entitlement might be in order: they may not have reached maximum medical rehabilitation and they will probably not receive labour market re-entry assistance. [130] Further, as noted by the Vice-Chair in his dissent, these benefits are only available immediately following the injury. In this regard, he referenced Tribunal Decision No. 1418/10, an older (plus 63) worker who can continue working after his or her injury, but needs surgery (flowing from the injury) two years later, will not be entitled to any LOE benefits because the subsection limits benefits to two years from the date of injury. [131] Finally, Ms Gianfelice submitted the impugned section does not correspond to workers’ actual circumstances in a way that was readily available. She pointed out that comparable legislation enacted in British Columbia allows for a more accurate correspondence between the individual injured worker and his/her circumstances. Section 23.1(b) of that province’s Workers' Compensation Act allows for loss of earnings benefits to be paid for two years to workers aged 63 years or older, or to be paid until some later date, as determined by the Board, if the Board is satisfied that the worker would have retired at a later date than two years post-injury. [132] Each party has argued its case with conviction and rigour; neither position is without merit. [133] There is a case with some similar facts - the Nova Scotia Workers’ Compensation Appeals Tribunal Decision No. 2002-811-AD. The worker in that case was 66 at the time of the injury (thereby proving he was working past the age of 65) and was given LOE benefits for 24 months in accordance with section 37(10) of the Nova Scotia Workers' Compensation Act. The nature of the appeal was framed somewhat differently than the one before us. In that case, the Panel stated that the basis for the challenge lay “in the facts that benefits are terminated because of age and not because workers injured over the age of 63 are entitled to limited benefits.” We understand the challenge before us to be framed as a limitation of benefits because of age. The Majority infers the difference emerges from the fact that the Nova Scotia Tribunal decision was dealing both with the provisions applying to workers under 63, as well as to workers over 63, even though the worker in the case fell within the purview of section 37(10). [134] In any event, the Nova Scotia decision found that subsections 37(9) - dealing with workers who are injured before age 63 - and (10) of their Act violated section 15(1) of the Charter. In coming to this decision, the Panel stated that the impugned provisions assume that workers over the age of 65 were not working and therefore did not have a corresponding loss of earnings, ignoring the reality that older workers may in fact be working and may be deprived of their livelihood by an injury. The Panel went on to state that the fact that earnings-replacement benefits are cut off at a time when some other sources of income become available (OAS, CPP, etc.,) and that some workers may be eligible to annuity payments was not sufficient to point away from discrimination. That decision also considered that the loss of replacement income, although primarily an economic deprivation, leads as well to a loss of dignity. The Tribunal concluded: The fact that the effect of the challenged provision corresponds with the timing of potentially private pension plans and federal legislation conferring pension benefits or old age benefits does not supplement or replace the consequences of being disentitled from earnings-replacement benefits available from active employment. [135] The decision went on to find that the infringement was, however, justified under section 1 of the Charter. [136] In our view, the Nova Scotia decision appears to have focused on the cessation of benefits at age 65 (section 37(9)), rather than on the fact that section 37(10) allows for benefits past that age. It also concluded that the impugned provisions assume that workers over the age of 65 are not working and, with respect, that does not conform with our reading of section 37(10). Since, in this case, we are concerned specifically with the duration of benefits paid to workers over 63, we do not find the reasoning set out in the above decision helpful. [137] Nor do we find the fact situation of the instant case assists our general deliberations. We will start with an analysis of the worker's circumstances in the case before us. At the time of the worker's injury he was 63, and had not demonstrated (as had the worker in the Nova Scotia case) he would be working after age 65. Further, the employer had compulsory retirement at age 65 for all its employees. The worker had no expectation of being employed with the accident employer past his 65th birthday. The interim decision allowed him full LOE benefits, based on his pre-accident earnings, past his official retirement date with the accident employer. That decision did so predicated on the worker's assertion that he would have continued working. The Majority would respectfully point out that this worker, uninjured or not, would not likely have found employment at age 65, and beyond, that paid at the same rate as did the accident employer. We say this because of the high wage rate for unskilled labour he was earning with the accident employer, the worker's education and, general skill level, all of which are a matter of record. We find it more likely, on the facts before us, that the worker would have had to take a less well-paying job and, arguably, his loss of earnings beyond his retirement date should have been based on deemed earnings rather than his pre-accident earnings to reflect the actual loss of earnings that flowed from the injury. [138] Also, the worker in this case provided no information or evidence of activity taken in support of his belief that he would have worked longer. We were not present at the hearing on the merits and do not dispute the worker's sincere belief that he would have continued to work past age 65. However, this is not a case where the worker actually worked past age 65 or provided objective evidence in support of his belief. In this regard we would refer to the significant difference between Professor Klassen’s statistic that 48% of people believe they will work past age 65 compared with the 10% to 15% who actually do. There is no way of knowing into which group the worker would have fallen; the probabilities, however, do not argue in the worker's favour. [139] In such a fact situation, it is difficult to conclude that the two years of benefits prejudiced or disadvantaged the worker by reason of his age. Thus, in our view, the instant case does not provide a good fact basis on which to find a section 15(1) Charter violation. Nonetheless, although the fact situation does not suggest the worker in this case has been disadvantaged or stereotyped based on age, we considered the effect of the provision on the claimant group as whole. [140] We are mindful there is a scarcity of statistics and the group affected, reasonably small. Information obtained by the Board - submitted by Mr. Gorham - demonstrates that almost 90% of the workers injured after age 61 return to work within two years. This statistic includes the claimant group. Thus, the two-year limitation does not disadvantage the majority who return to work. [141] In the final analysis, we consider it possible that a two-year limit will not serve every individual in a manner that reflects his or her circumstances. We do not find, however, that the impugned section disadvantages the group as a whole. [142] The Majority finds that two years of benefits after age 63 reflects an appreciation for and understanding of older workers who continue to work past the expected retirement date of 65. While the impugned section is not tailored to the circumstances of each worker, it provides a not insubstantial bridge of two years, one that allows 24 months for a worker to reach maximum medical rehabilitation; 24 months to make arrangements for seguing to retirement; and, allows 24 months for the worker to be able to effect a return to work (and this is successful in nearly 90% of the cases). [143] The Majority concludes that the two-year period must be understood within the life circumstances of the claimant group. Two years of benefits would not have the same impact on the working life of a 25-year-old, one whose working life might reasonably be expected to extend for another 40 years. This is just not the case for a worker aged 63 or older. As noted by the Court, setting reasonable policy limits to carry out the purpose of the enacting legislation does not constitute a section 15(1) Charter violation. Insurance schemes must establish criteria and some of these will be based on age. Viewed contextually, we do not find the limitation of two years’ benefits to workers aged 63 and older to perpetuate prejudice or negatively to stereotype the individual. Two years does not constitute a token amount of loss of earnings benefits, such that could be readily understood to demean or disadvantage those affected. [144] In our view, allowing two years of loss of earnings benefits provides reasonable remuneration to a group, the extent of whose working life will be circumscribed by other factors that have nothing to do with the compensation scheme. While Ms Gianfelice referred to other services not generally available to older workers, the Majority finds nothing in this subsection precluding older workers from receiving labour market re-entry services, nor does it include any bar to receiving health care services beyond the two-year period. [145] In our view, the subsection recognizes that workers do work past age 65, that they may be injured at any point past that date and, that they are entitled to substantial but finite income replacement benefits, finite because loss of earnings benefits do not substitute for retirement income. With each year past 65, the decision to retire grows more likely. That is a fact and does not perpetuate stereotypes or disadvantage workers. It would in our view perpetuate stereotypes if there were no acknowledgement that older workers were contributing members of the workforce, or if the benefits extended were so brief as not to be meaningful. This is not the situation. Regardless of the age of the worker (over age 63), she or he can receive two years of benefits providing economic stability and time – either to return to work or to retire. [146] In summary, the Majority’s reasoning is analogous to the analysis carried out by the Supreme Court in Withler. We agree a fixed time of income replacement benefits for older workers does not constitute a perfect system and may not correspond exactly to the needs of each individual. This is not the test for a section 15(1) Charter violation. We have considered the law’s real impact on the group affected. We have concluded that the termination of benefits after two years was age-related and constituted a distinction on an enumerated ground. However, we also find that the time limitation is effective in meeting the actual needs of the group as a whole and is consistent with the overarching aims of the legislation. The legislation is intended to provide, amongst other things, loss of earnings benefits “flowing from the injury” in “financially responsible and accountable manner.” We find, in general, that a two-year limit for loss of earnings benefits for workers over age 63 accomplishes this. [147] The Majority finds that the worker has failed to prove that, as an individual, or as part of a larger group, he has suffered from pre-existing disadvantage, prejudice or stereotyping based on age. (vi) Section 1 consideration [148] As the Majority has found no section 15(1) violation, there is no need or requirement to address section 1 of the Charter. [149] However, the Majority further finds that even if it were to have erred in finding that section 43(1)(c) does not violate section 15(1) of the Charter, the impugned section would still constitute a reasonable limit under section 1 of the Charter. [150] The 1986 decision of the Supreme Court of Canada in R. v. Oakes[12] sets out a two-part test for determining whether a limit is reasonable and demonstrably justified, which it summarizes as follows: A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all s.1 cases, the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable. [151] The Majority finds that the government has shown the impugned section would be saved by a section 1 consideration. [152] In considering this aspect, we find the Zaretski decision referred to in Tribunal Counsel Office’s submissions to be relevant, as is the Nova Scotia Tribunal Decision No. 2002-811-AD. In this case, we find the objective of the legislation – to provide injured workers with loss of earnings benefits resulting from a work injury but not past the age workers would likely have retired – to be pressing and substantial. Two of the reasons provided in Zaretski broadly apply to the instant appeal. That is, the two-year cap establishes a fixed termination date to avoid the problem of predicting when workers would have retired and, it best utilizes existing financial resources while limiting excessive financial demands on the compensation scheme. The AG provided similar reasons in the Nova Scotia Decision No. 2002-811-AD. [153] In the instant case, the AG refers us to the Court’s decision in Alberta v. Hutterian Brethern of Wilson Colony,[13] where it noted that section 1 does not demand that the “limit on the right be perfectly calibrated, judged in hindsight” and that where a complex regulatory response is challenged, “courts will generally take a more deferential posture throughout the section 1 analysis.” [154] The Appellant addressed whether section 43(1)(c) was saved under section 1 of the Charter, submitting that it was not. The Appellant argued that, in the first instance, the objective of section 43(1)(c) was not of sufficient importance to warrant overriding a constitutional right. [155] The Appellant suggested that it was appropriate to consider the objectives of Bill 162 (in implementing loss of earnings benefits) as identified by the government of the day. The then Minister of Labour noted that workers’ compensation was failing in its objective of restoring workers to their pre-accident status. [156] With respect, the Majority finds that the first test is met: the objective of the legislation is pressing and substantial. We find the reasons set out in Zarestksi and the Nova Scotia Decision No. 2002-811-AD to be generally applicable in the instant case. Since we are discussing the payment of loss of earnings benefits beyond age 65, it can be argued that the legislation has an extra rationale to apply limits. [157] We turn now to the question of rational connection. Limiting loss of earnings benefits to workers aged 63 and older is rationally connected to the aim of ensuring that benefits are paid for wage loss and not as a retirement subsidy. The worker argues that there is no individualization of the loss of earnings calculation for workers injured at age 63 or over and, as such, there is no rational connection. We do not accept this argument. As noted above in our decision, almost 90% (88.8% according to WSIB statistics) of workers aged 63 years of age and older when injured, return to work within the two-year period. Accordingly, the benefits accord with the needs of that 90%. Consequently, the section does provide a demonstrable rational connection between their needs and their benefits. [158] The section may not meet each person’s needs but that does not satisfy us that there is no rational connection. A perfectly individualized system is not required to prove a rational connection. [159] We now address the criterion of minimal impairment. To the extent that the AG’s arguments refer to the age limitation on loss of earnings benefits they are not helpful. This is not an age limit (65) but a time/age limit (two years for workers aged 63 and older). We do accept the AG’s argument that by providing workers who are injured after age 63 to two years of benefits, this minimizes the effect of the age 65 limit on injured older workers. To extend the analysis, if there is minimal impairment to set 65 as the termination date for workers up to age 63, we are hard pressed to see there would be anything more than minimal impairment for a section that allows two years’ loss of earnings benefits for workers who are over 63 (or 65 or 75). We note that for workers injured at age 63 and over, they may not have access to the retirement annuity, but they will have had their working life to prepare for retirement and they will have access to the benefits that apply at age 65, just as workers whose benefits are terminated at age 65 do. Absent injury, a worker can be expected to make his or her own plans for retirement. The workplace insurance scheme is not intended to replace or substitute for individual planning. By this we mean that the retirement annuity available to workers injured early on in their career provides a cushion precisely because their earning capacity has been interrupted. If a worker is not injured before age 63, that worker has had those years to provide his or her own cushion. Minimal impairment does not signify that the insurance plan steps in as an ongoing social net. [160] Lastly, there is the criterion of proportionality of effects. In this case, section 43(1)(c) is demonstrably proportional to the needs of 88.8% of those affected by it. The loss of earnings benefits have been available to them for the time needed. The appellant referred to Professor Klassen’s information that 48% of people plan to work past age 65 and that there has been a significant change in the demographics. The appellant also relies on the worker's evidence that he planned to work past retirement age as evidence that there is not a proportionality between the limit and the objective. [161] The Majority acknowledges that there may be instances where a worker has been injured at, say, age 66, with good evidence (such as an employment contract), that he or she would have been employed for another five years. Such a worker would be adversely affected by section 43(1)(c) and it would not be proportional to his or her individual needs. The Courts have been clear that individualized assessment does not determine proportionality. Further, these needs are largely speculative as there is no sound basis on which to establish what percentage of injured workers are deleteriously affected by the two year limit. For instance, of the 11.2% of workers injured at age 61 or beyond (based on the Board's statistics) who do not return to work, we have no means of determining whether some, many or most, were planning to retire within that two-year period absent injury. For any who were planning to retire, again, the section operates fairly with no deleterious effect. Without clear evidence, we find it difficult to weigh the hypothetical or potential deleterious effect against the known salutary effect: guaranteed loss of earnings benefits for those injured past age 63 paid out within an actuarially sound scheme. [162] The Majority acknowledges that the legislation could have built in a discretionary extension to the two-year cap (as does the B.C. legislation). The fact that the Ontario section may not provide the ideal remedy does not signify its effect is not proportional to the objective. If Professor Klassen is correct and the demographic shift is shown to be as profound as he suggests over time, then there may well come a time when the legislation will need to adapt in order to satisfy the requirements of proportionality but that is not the situation at present. The Majority finds that, even if section 43(1)(c) violated section 15(1) of the Charter, at this time, the section 43(1)(c) would be upheld by virtue of section 1 of the Charter in applying the relevant two-part test. We are satisfied that this is in line with the relevant jurisprudence as viewed through the perspective of this fact situation. (vi) Summary [163] In summary the Majority has made the following findings in regards to the worker's claim that section 43(1)(c) of the WSIA violates section 15(1) of the Charter. The Majority applied the two-part Kapp test. In approaching the analysis, we adopted the approach as outlined in Withler. In doing so, the Majority considered the relevant broader social political and legal contest as the best approach to a discussion of substantive equality. We find that even if we erred in finding that section 43(1)(c) does not violate section 15(1) of the Charter, it would be saved under a section 1 examination. Again, in line with Withler, the Majority did not rely on a mirror comparator group, an approach with which the parties were in agreement. The Majority did find there was a distinction upon an enumerated ground – age. The Majority finds that the impugned section did not perpetuate disadvantage or prejudice or stereotype the worker and the affected group. We did not find that the section was substantively discriminatory in that it was not shown that its effects did not correspond with the claimant group’s actual needs and circumstances. [164] While the Majority did not find that the impugned section violated section 15(1) of the Charter, for the sake of completeness we considered whether, if one accepted there had been a violation, would it be saved by a section 1 consideration. The Majority reached the following findings in respect to a section 1 analysis: The Majority applied the two-part test set out in Oakes. In doing so, we found the means chosen to attain the legislative end was reasonable and demonstrably justifiable, thus satisfying the first condition. With respect to the second condition, the Majority found that all three criteria had been satisfied. There was a rational connection of the rights violation to the aim of the legislation; the impugned section minimally impaired the Charter guarantee; and that there was a proportionality between the effect of the measure and its objective. In applying the test, we found the analysis in Zarestski relevant and helpful. disposition [165] The Majority finds that section 43(1)(c) of the WSIA does not violate section 15(1) of the Charter. DATED: November 2, 2011 SIGNED: M. Christie, F. Jackson
• Judgement Number: Released_Decisions
• Hearing Date: 14 June 2011
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

Chris

Workplace Safety and Insurance

Appeals Tribunal

DECISION NO. 512/06

BEFORE: A.V.G. Silipo : Vice-Chair

M. Christie : Member Representative of Employers

F. Jackson : Member Representative of Workers

HEARING: June 21, 22, 23, 2010 at Toronto

Written and Oral

Post-hearing completed June 14, 2011

DATE OF DECISION: November 2, 2011

NEUTRAL CITATION: 2011 ONWSIAT 2525

DECISION UNDER APPEAL: WSIB ARO decision dated September 16, 2004

APPEARANCES:

For the worker: Ms T. A. Gianfelice, Lawyer, Office of the Worker Adviser

Mr. R. A. Fink, Lawyer

Mr. T. R. Klassen, Associate Professor, York University, Expert Witness

For the employer: Ms S. Clark, Lawyer

Mr. A. Esonwanne, Lawyer

For the Attorney General: Mr. M. Horner, Lawyer

Mr. R. Charney, Lawyer

Mr. P. Gorham, Expert Witness

Other: Ms C. Zimmermann, Lawyer, Tribunal Counsel Office

Interpreter: N/A

reasons

Introduction

[1] The worker appealed the decision of Appeals Resolutions Officer S. Marangoni (the ARO) dated September 16, 2004. That decision concluded that the worker was not entitled to loss of earnings (LOE) benefits beyond May 31, 2002 for a back impairment and was not entitled to benefits for a right shoulder injury

[2] In Decision No. 512/06I the Vice Chair upheld the Board’s decision to deny the worker entitlement to benefits for a right shoulder injury, but granted the worker entitlement to LOE benefits from May 31, 2002 until February 5, 2003, pursuant to subsection 43(1)(c) of the Workplace Safety Insurance Act (the WSIA).

[3] During the hearing which led to that interim decision, the worker had indicated his intent to pursue a constitutional challenge to subsection 43(1)(c) of the WSIA which limited his LOE benefits to two years post-injury. The worker then complied with all of the required procedures and the constitutional issue is now before the Tribunal. The Vice-Chair of the interim decision requested and the Tribunal Chair directed that a full panel be established to hear the constitutional challenge.

[4] As required by the Tribunal's rules of procedures, the worker's lawyer notified the Attorney General for Ontario (the AG) of the constitutional challenge; the AG indicated it would participate. The Panel invited the Office of the Worker Adviser and the Office of the Employer Adviser to participate as interveners. The Office of the Employer Adviser withdrew from the appeal, while the Office of the Worker Adviser joined with Mr. Fink to become co-counsel for the worker. Tribunal Counsel Office also participated in the appeal, providing submissions at various stages in the proceedings.

The issues

[5] The issues before the Tribunal are as follows:

• Does subsection 43(1)(c) of the WSIA contravene subsection 15(1) of the Canadian Charter of Rights and Freedoms (the Charter)?
• If subsection 43(1)(c) of the WSIA does contravene subsection 15(1) of the Charter, is it saved by a consideration of section 1 of the Charter?

Structure of the decision

[6] This case was an involved and complicated one, involving days of hearings, expert evidence and considerable documentation. At the end of the day, the Panel was unable to reach a consensus and what follows is the reasoning of the Majority. In order to lay out the material, evidence and submissions in a coherent fashion, the Majority will adhere to the following structure in proceeding with its decision:

• the relevant background to the worker's appeal
• an historical review of workers’ compensation in Ontario and the origins of the dual award system that led to a loss of earnings (LOE) benefits scheme
• a summary of the expert evidence provided
• an overview of the Supreme Court approaches to section 15(1) decisions
• the relevance of comparator groups
• submissions from the parties and from Tribunal Counsel Office
• the relevance of the recent Supreme Court decision in Withler
• analysis by the Majority on the section 15(1) argument
• Supreme Court approach to section 1 arguments
• Submissions by the parties and from Tribunal Counsel Office on section 1
• Analysis by the Majority on the section 1 consideration

(iv) Background to the worker's appeal

[7] The now 72-year-old worker first suffered a compensable back injury, while working for a different employer, in 1982. He went on to receive a 10% permanent disability award (paid as a monthly lifetime pension) and periods of supplementary benefits while he was receiving vocational rehabilitation services. The initial vocational rehabilitation interview assessment noted the worker had a Class G licence, no difficulties with English, and a Grade 5 education. The worker obtained employment in 1987 working for a different employer as a cleaner and, in 1988, started with the accident employer, a municipality, as a parks attendant.

[8] On February 5, 2001, the worker fell and hit his head on a locker. He was 63 years old at the time. At the time of injury, he was earning approximately $18 an hour. A Claims Adjudicator accepted that the worker had sustained cervical and lumbar strains and granted him loss of earnings benefits (LOE) benefits until May 31, 2002, when the worker reached age 65. This was also the date of compulsory retirement with the accident employer. The worker went on to receive a 37% Non-economic Loss (NEL) award for his back and neck impairments (also paid on a monthly basis).

[9] In February 2003, the worker claimed that he had also injured his right shoulder in the February 5, 2001 accident. On March 3, 2003, a Claims Adjudicator denied him entitlement. The worker objected to this decision and to the date his LOE benefits had been terminated. The Appeals Resolution Officer affirmed the May 2002 date for the termination of LOE benefits on the basis that the employer had mandatory retirement as of that date and any loss of earnings following that period could not reasonably be seen as the result of the

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