Tribunal rules against age-related reduction of workers’ compensation

In a decision that may ultimately have implications around the country, a workers’ compensation tribunal in Quebec has ruled that reducing injured workers’ income replacement benefits at age 65 offends both provincial and federal human rights legislation.

“It’s an important decision,” said Marianne Plamondon, a lawyer with Ogilvy Renault LLP in Montreal. “Our whole system in Canada is based on a recognized retirement age of 65. Income replacement laws require payments to stop or be reduced at this age.”

In Côté et Traverse Rivière-du-Loup St-Siméon, the Commission des lésions professionnelles (CLP) ruled that s. 56 of the Act respecting industrial accidents and occupational diseases discriminates against workers on the basis of age and is, therefore, contrary to s. 10 of the Quebec Charter of Human Rights and Freedoms and s. 15(1) of the Canadian Charter of Rights and Freedoms.

“Before the Côté decision, a few judgments had been rendered by the CLP on the same issue and the tribunal had always taken the opposite view,” said Christian Létourneau, a partner with Fraser Milner Casgrain LLP in Montreal.

In the current decision, the tribunal considered that s. 56 establishes a distinction based on age that is prohibited under Article 10 of the Quebec Charter, noted Jean-François Cloutier, a partner with Fasken Martineau DuMoulin LLP in Montreal. “This provision creates a distinction because workers over 64 or 65 years old do not receive a full compensation compared to other categories of workers, which in the view of the tribunal is contrary to the object of the Act.

“They also said this perpetuated the myth about older persons’ ability to work and this is discriminatory,” he noted.

At issue here was a 64-year-old worker who was injured on the job. According to existing law, his workers’ compensation payments are reduced by 25 per cent from the second year of the date of his disability, then by 50 per cent from the third year, and then 75 per cent from the fourth year. (For injured workers younger than 64, payments are reduced yearly by 25, 50 and 75 per cent beginning at age 65.)

The worker argued before the tribunal that this was discriminatory under s. 10 of the provincial human rights legislation, despite the fact that the income replacement benefit reduction was enshrined in law elsewhere.

“The tribunal concluded that s. 56 violated s. 10 even though s. 56 was a prohibition by law,” said Cloutier.

The Quebec attorney general had argued that the income-replacement benefit reduction was justifiable under s. 1. “There is case law that it may be discriminatory under s. 15, but justifiable under s. 1,” said Plamondon, who practises in all areas of employment and labour law.

“The tribunal found that there was not sufficient evidence to show that the old program was in danger of an explosion of costs,” she added. “This was surprising. The attorney general should have put forward the evidence on this.”

The attorney general did inform the tribunal that the average age of retirement in Quebec is just over 59 years, a fact he argued that made the income-replacement reduction provisions acceptable. The tribunal disagreed. “The attorney general raised the point the act is an acceptable compromise because it reflects the reality in the province,” Plamondon said.

As things currently stand, there is confusion. “Now there is contradictory jurisprudence,” said Cloutier. “We will see what will happen before the superior court.”

The decision has been sent for judicial review in Quebec’s Superior Court. The implications of this decision may reach beyond the province’s border to the rest of Canada. “We will be able to ascertain the real impact of the Coté decision when the superior court, or a higher court, renders a final decision,” said Létourneau.

That impact may extend beyond workers’ compensation. “There are other similar provisions in pension plans, for example, that eliminate benefits at a certain age,” noted Cloutier.

There is currently a case before the Supreme Court of Canada from B.C., he added, that is looking at pension plans and benefit reductions. The B.C. court found it was not discriminatory. The legal community is watching with interest what the Supreme Court will decide later this year. Now eyes are also turned to Quebec.

“It’s a new area,” said Cloutier.