Ontario's Divisional Court has decided that the
Workplace Safety and Insurance Act's age cut-off for
loss of earnings benefits for older workers did not violate the
Canadian Charter of Rights and Freedoms.
Subsection 43(1) of the WSIA cuts off loss of earnings benefits
when an employee reaches 65 years of age, if the worker was less
than 63 years of age on the date of the injury; or two years after
the date of the injury, if the worker was 63 years of age or older
on the date of the injury.
The appellant worker, Daniel Gouthro, worked for the City of
Toronto. He was injured at work when he was 63 years old.
Because of subs. 43(1) of the WSIA, the WSIB cut off his loss of
earnings benefits two years after the date of the injury, when he
was 65 years old. Gouthro argued that that cut-off was
discriminatory and thus violated the Charter.
The Court noted that one of the stated purposes of the WSIA was
that the WSIB operate in a "financially responsible and
accountable manner", so loss of earnings benefits cannot be
paid for life. If the WSIA provided that injured workers were
to receive loss of earnings benefits until they died, that would
imply that people work until they die. Both intuitively and
statistically, that seemed incorrect. The Court noted that
loss of earnings benefits should be replaced by retirement income
benefits at an age reflecting typical retirement.
The Court also noted that the WSIA's cut-off of loss of
earnings benefits "does not create a disadvantage based on a
stereotypical attribute. It is grounded in the statistically
verifiable facts referred to earlier; namely that as of 2008
approximately 90% of Canadian workers stop working at the age of 65
years and 90% of workers injured after the age of 61 return to work
within two years."
As such, the WSIB's age cut-offs were not discriminatory and
remained in effect.
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