A Quebec workers’ compensation tribunal has ruled that reducing injured workers’ income replacement benefits at the retirement age of 65, which is allowed under section 56 of the Act respecting industrial accidents and occupational diseases, is unconstitutional because it discriminates on the basis of age, contrary to both the Quebec Charter of Human Rights and Freedoms (section 10) and the Canadian Charter of Rights and Freedoms (section 15).

The 64-year-old worker at the centre of the case suffered an industrial accident on November 29, 2007, which forced him to stop working. On November 29, 2008, the date which marked the beginning of his second year of compensation and having reached the age of 65, his indemnity was reduced pursuant to section 56 of the Act, which provides for the following:

The income replacement indemnity is reduced by 25% from the sixty-fifth birthday of the worker, by 50% from the second year and by 75% from the third year following the said date.

Notwithstanding the first paragraph, the income replacement indemnity of a worker who suffered an employment injury when 64 years of age is reduced, by 25% from the second year following the date of the beginning of his disability, by 50% from the third year and by 75% from the fourth year following the said date.

The worker believes that he suffered prejudice from the workers’ compensation benefits reduction just because he turned 65.

Quebec’s Attorney General argued that the average retirement age of workers in Quebec is just in excess of 59 years of age; therefore, it was quite reasonable to expect a reduction in income, whether at work or on workers’ compensation benefits. It was also argued that the reduction in workers’ compensation benefits by statute is an acceptable and reasonable compromise based on the reality of the average retirement age, and the need for certainty in funding of the workers’ compensation system.

To establish a discrimination claim, one must prove that a law, in purpose or effect, conflicts with the purpose of section 15 of the Canadian Charter. To do this, the Court of Appeal applied the precedent-setting Supreme Court of Canada case, Law v. Canada (Minister of Employment and Immigration), [1999] 1 S. C. R. 497.

The Law test applies the following factors to determine whether discrimination has occurred:

1. Pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue
2. 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
3. The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society
4. The nature and scope of the interest affected by the impugned law

The tribunal found that the distinction created by section 56 of the Act perpetuates prejudices and stereotypes against older workers specifically as they relate to their ability to work. A person should not be punished for wanting to work past what would generally be considered a “normal” age. Consequently, the Workers’ Compensation Board may not reduce a worker’s benefits simply because he or she is older than another similarly situated worker. Any apportionment to age, per se, runs afoul of section 15 of the Charter.

Quebec is not the only jurisdiction in Canada with such a provision in its workers’ compensation and other legislation. This case may ultimately have serious implications across the country. Marianne Plamondon, a lawyer with Ogilvy Renault LLP in Montreal, stated to The Lawyers Weekly that “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.”

I am quite sure the final word will come from the Supreme Court of Canada.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor