AIR CANADA PILOTS ASSOCIATION Applicant v. AIR CANADA AND ROY BENTLEY, 2023 FC 138

Date: 20230130 Docket: T-1588-19 Citation: 2023 FC 138 Toronto, Ontario, January 30, 2023 PRESENT: The Honourable Madam Justice Furlanetto BETWEEN: AIR CANADA PILOTS ASSOCIATION Applicant and AIR CANADA AND ROY BENTLEY Respondents JUDGMENT AND REASONS [ 1 ] This is an application for judicial review of an August 28, 2019 decision [Decision] of the Canadian Human Rights Tribunal [CHRT] that, inter alia , dismissed a request to declare subsections 3(

b) and 5(

b) of the Canadian Human Rights Benefit Regulations SOR/80-68 [ Regulations ] unconstitutional for violating subsection 15(1) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]. The CHRT found that subsections 3(

b) and 5(

b) of the Regulations were a complete defence to complaints filed by the Respondent, Roy Bentley, against Air Canada [AC] and Air Canada Pilots Association [ACPA] that a provision of the collective agreement between AC and ACPA allowing for termination of long-term disability benefits for pilots who became eligible to receive unreduced pension benefits was age discrimination within the meaning of the Canadian Human Rights Act , RSC 1985, c H-6 [ Act ]. [ 2 ] Mr. Bentley is now retired from AC and has elected not to participate in the current proceedings.

He did not file any materials or participate in the hearing of this matter. Instead, ACPA has brought this application to challenge the CHRT’s finding based on subsection 15(1) of the Charter . [ 3 ] For the reasons set out below, it is my view that the application should be dismissed as ACPA has failed to demonstrate that the phrase " “normal pensionable age under the pension plan of which the employee is a member” " from subsections 3(

b) and 5(

b) of the Regulations violates the substantive equality norm enshrined in subsection 15(1) of the Charter . I. Background [ 4 ] In 2011, ACPA and AC entered into a collective agreement [Agreement] that was in force from 2011 to 2016. In 2012, amendments were made to the Agreement in response to legislative amendments repealing a provision that permitted mandatory retirement at the age of 60.

The amendments provided that pilots were eligible to retire with an unreduced pension at age 60 with 25 years of service, or at age 65 if they did not have 25 years of qualifying service. [ 5 ] The Agreement also included a Group Disability Income Plan [GDIP] for pilots on long-term disability. Provision L75.07 of the GDIP provided that pilots who were eligible for an unreduced pension did not qualify for disability benefits should they become unable to work due to illness or disability. [ 6 ] Mr. Bentley turned 60 on May 30, 2014.

He became eligible to retire with an unreduced pension as he had completed more than 25 years of service with AC. When he learned that he would not receive GDIP benefits if he became disabled, he filed a human rights complaint. A. Proceeding before the CHRT [ 7 ] Before the CHRT, Mr. Bentley argued that subsections 3(

b) and 5(

b) of the Regulations violated subsection 15(1) of the Charter and were not saved by

section 1, and that L75.07 of the GDIP was discriminatory on the basis of age. [ 8 ] Both AC and ACPA initially opposed Mr. Bentley’s arguments. However, in May 2018, the Ontario Human Rights Tribunal [OHRT] released its decision in Talos v Grand Erie District School Board , 2018 HRTO 680 [ Talos ], wherein the OHRT found that a provision under Ontario human rights legislation violated subsection 15(1) of the Charter and were not to be saved by

section 1. After the release of Talos, ACPA changed its position to support Mr. Bentley’s arguments. B. Evidence before the CHRT [ 9 ] Before the CHRT, ACPA provided evidence from three former pilots: Mr. Bentley, Robert Lyon and Sandra Anderson. Mr. Bentley was not disabled and was therefore not financially harmed by the provisions. Robert Lyon required six months to recover from a heart attack after his 60 th birthday. He took leave without pay after exhausting his vacation and sick days before returning to work. Sandra Anderson required a major surgery four months after her 60 th birthday.

She retired seven months later after using her accrued sick days and vacation days so she did not have to go without income.

[ 10 ] AC also provided an expert report from Peter Gorham [Gorham Report] who was qualified as an expert " “with actuarial expertise in the design, implementation, governance, costing and funding of pension plans and employee benefit programs” " . Mr. Gorham reached two key conclusions in his report: A . It is appropriate from an actuarial and insurance perspective ( i.e., cost effectiveness) to replace loss of income benefits with retirement benefits for workers at some point between age 61 and 65; and B .

Reference to pensionable age is a reasonable proxy to recognize the specific retirement experience at various employers. [ 11 ] In arriving at these conclusions, Mr. Gorham opined that " “it [was] not actuarially sound to continue to pay disability income protection after a point at which the majority of workers are likely to have retired. To do so [would] over compensate more than half of the disabled workers.” " [ 12 ] He noted that to be actuarially sound there needed to be a point where income benefits ceased. However, there was no single correct age at which benefits should stop.

Rather, there was a range of ages that could vary based on retirement patterns of Canadians, in general, and of the employer in particular. In his opinion, the use of pensionable age was an appropriate method of setting a point at which disability benefits could cease as it recognized differing employment situations such as those resulting from employees with unreduced early retirement benefits, who tended to retire at younger ages than those without unreduced early retirement pensions. C. Decision under review [ 13 ] The CHRT found that when the effects of L75.07 are taken into account, subsections 3(

b) and 5(

b) of the Regulations create a distinction based on an analogous ground, meeting the first part of the subsection 15(1) test. [ 14 ] However, the CHRT concluded that subsections 3(

b) and 5(

b) of the Regulations did not disadvantage, prejudice, or stereotype the claimant group. The termination of disability benefits upon reaching pensionable age was set off with generous retirement benefits, and an unreduced pension. Given the high costs of maintaining disability insurance for older individuals, this compromise was reasonable. The CHRT did not accept ACPA’s reliance on Talos . It distinguished Talos , which dealt with health, dental, and life insurance benefits rather than disability benefits and explicitly excluded long-term disability insurance and pension plans. [ 15 ] As the CHRT concluded there was no violation of subsection 15(1) of the Charter , there was no

section 1 analysis. II. Issues and Standard of Review [ 16 ] Pursuant to

section 22 of the Act , the terms of an insurance plan do not violate the Act if the discriminatory basis of that insurance plan is permitted by the Regulations . Subsections 3(

b) and 5(

b) of the Regulations contain two distinct exemptions: if the employee is at an age that is not less than 65; or if the employee is the " “normal pensionable age under the pension plan” " . These provisions read as follows: " 3 The following provisions of a benefit plan do not constitute the basis for a complaint under

Part III of the Act that an employer is engaging or has engaged in a discriminatory practice: " " 3 " " Les dispositions suivantes d’un régime de prestations ne constituent pas des motifs raisonnables pour formuler, en vertu de la

Partie III de la Loi, une plainte pour acte discriminatoire de la part de l’employeur : " " . . . " " . . . " " (

b) in the case of any disability income insurance plan, provisions that result in an employee being excluded from participation in the plan because the employee has attained the age at which a member of the plan would not be eligible to receive benefits under the plan or has attained that age less the length of the waiting period following the commencement of a disability that must pass before benefits may become payable thereunder, if that age is not less than 65 or the normal pensionable age under the pension plan of which the employee is a member, whichever occurs first; " " " " b) " " dans le cas d’un régime d’assurance- revenu en cas d’invalidité, les dispositions qui en excluent un employé parce qu’il a atteint l’âge auquel les prestations cessent d’être payables aux membres du régime, ou a atteint cet âge même en tenant compte de la période d’attente entre le début de l’invalidité et la date où les prestations deviennent payables, lequel âge correspond à soixante- cinq ans ou à l’âge normal ouvrant droit à la pension en vertu du régime de retraite auquel participe l’employé, selon ce qui se présente le premier; " " . . .

" " . . . " " 5 The following provisions of an insurance plan do not constitute the basis for a complaint under

Part III of the Act that an employer is engaging or has engaged in a discriminatory practice: " " 5 " " Les dispositions suivantes d’un régime d’assurance ne constituent pas des motifs raisonnables pour formuler, en vertu de la

Partie III de la Loi, une plainte pour acte discriminatoire de la part de l’employeur : " " . . . " " . . . "

" (

b) in the case of any disability income insurance plan, provisions that result in differentiation being made between employees because the benefits payable under the plan to an employee cease when the employee has attained the age of not less than 65, or the normal pensionable age under the pension plan of which the employee is a member, whichever occurs first; " " " "

b) dans le cas d’un régime d’assurance- revenu en cas d’invalidité, les dispositions qui établissent une distinction entre les employés parce qu’elles prévoient la cessation des prestations à l’âge de soixante- cinq ans ou à l’âge normal ouvrant droit à la pension en vertu du régime de retraite auquel participe l’employé, selon ce qui se présente le premier; " " [Emphasis Added] " " [Je souligne] " [ 17 ] The Applicant on this judicial review does not challenge the constitutional validity of the exemption from disability insurance plans for employees not less than 65.

Nor is it challenging the appropriateness of the GDIP benefits. The sole substantive issue on this application is whether the exemption that employees at " “normal pensionable age under the pension plan of which the employee is a member” " [Impugned Provision] are cut-off from disability benefits is a violation of subsection 15(1) of the Charter and if so, whether it is saved by

section 1 of the Charter . [ 18 ] In addition, AC raises as a preliminary issue whether ACPA should be permitted to advance new arguments and evidence on judicial review that were not before the CHRT, namely with respect to the latter, the introduction of various social science papers in its Book of Authorities [BOA]. [ 19 ] There is no standard of review for the preliminary issue. [ 20 ] The standard of review for the substantive issue is correctness. The compatibility of subsections 3(

b) and 5(

b) of the Regulations with the Charter is a constitutional question that falls within an exception to the presumption of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 55-57 . [ 21 ] As noted by AC, when applying the correctness standard, the Court must remain alert to the structural limitations of a judicial review, which is concerned with the legality of the underlying decision ( Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall , 2018 SCC 26 at para 13 ) and determining whether reviewable errors were committed.

As explained by the Federal Court of Appeal in Bekker v Canada , 2004 FCA 186 [ Bekker ] at paragraph 11 , the judicial review is not a de novo hearing: Judicial review proceedings are limited in scope. They are not trial de novo proceedings whereby determination of new issues can be made on the basis of freshly adduced evidence. As Rothstein J.A. said in Gitxsan Treaty Society v.

Hospital Employees Union...”the essential purpose of judicial review is the review of decisions” and, I would add, to merely ascertain their legality...This is the reason why, barring exceptional circumstances such as bias or jurisdictional questions, which may not appear on the record, the reviewing Court is bound by and limited to the record that was before the judge or the Board. Fairness to the parties and the court or tribunal under review dictates such a limitation. [Footnotes and emphasis deleted] III. Analysis A.

Should ACPA’s new evidence and arguments be permitted? [ 22 ] AC asserts that arguments and evidence advanced by ACPA before this Court were not made before the CHRT and as such are improperly raised. [ 23 ] As noted by AC and referenced earlier, in its initial submissions to the CHRT, ACPA supported AC’s position that the amendment to the Agreement was shielded by subsections 3(

b) and 5(

b) of the Regulations and that these subsections did not violate the Charter . In doing so, they relied fully on the Gorham Report. However, after a request for further submissions from the CHRT Hearings Officer because of the OHRT’s decision in Talos , ACPA changed its position, asserting that subsections 3(

b) and 5(

b) were contrary to subsection 15(1) of the Charter . In these further submissions, ACPA made little independent argument, essentially adopting the OHRT’s analysis and asserting it applied equally to the matter before the CHRT. [ 24 ] Before the Court now, ACPA seeks to critique aspects of the Gorham Report in support of its argument that subsections 3(

b) and 5(

b) are unconstitutional. [ 25 ] Further, AC asserts that ACPA raises a new argument at paragraph 33 of the Applicant’s memorandum of fact and law that is broader than the issues before the CHRT. In this paragraph, ACPA characterizes the issue as " “whether the mere existence of a pension plan excuses the complete denial of disability benefits – no matter what benefits the pension plan’s terms provide. ” " [ 26 ] AC argues that this paragraph is a recharacterization of the issues before the CHRT that widens the scope of the analysis beyond the GDIP and has denied the Respondent the opportunity to file relevant evidence on different pension plans and how they interact with subsections 3(

b) and 5(

b) of the Regulations . AC similarly asserts that it has been denied the opportunity to address the difference between defined benefit plans and defined contribution plans, which would be relevant to this broader issue. [ 27 ] ACPA argues that this is not a situation where a new issue is being raised before the Court that was not before the CHRT. Rather, in this case, the subsection 15(1) issue was clearly before the CHRT, and a decision on the issue was rendered by the CHRT. Thus, the decision-maker was provided with an opportunity to express an opinion on the Charter issue.

[28] I agree with AC that the issues as framed cannot be broader than the matters that were before the CHRT: Alberta (Information andPrivacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at para 26. However, I do not agree that ACPA is foreclosedfrom challenging the CHRT’s findings on subsection 15(1) or from advancing arguments that relate to those made by Mr.

Bentley beforethe CHRT or that encompass what the CHRT would have considered as a result of the post-hearing submissions and its consideration ofTalos. [29] With respect to evidence, AC impugns ACPA’s criticisms of the Gorham Report, the reliance on expert evidence from decisionssuch as Talos, and the introduction of social science articles in its BOA that were not introduced via expert testimony before the CHRT. [30] I agree with ACPA that the reliance and criticisms of the Gorham evidence is not new evidence. ACPA is not seeking to introducecompeting evidence to the opinions given by Mr. Gorham.

Rather, they are seeking to point to certain aspects of Mr. Gorham’s evidenceand are asking this Court to draw a different legal conclusion on that evidence than the one drawn by the CHRT. [31] Regarding the reliance on expert evidence from other decisions, such evidence cannot be taken as evidence of first instance and canonly be viewed in context.

This will be dealt with further, where necessary, when addressing the parties’ specific arguments under thesubsection 15(1) analysis. [32] With respect to ACPA’s reference to secondary source social science articles, ACPA asserts that it is not relying on these articles asevidence, but rather to put the existing evidence in context.

ACPA argues that this is consistent with the approach taken in other cases;such as, Stadler v Director, St Bonifact/St Vital, 2020 MBCA 46 [Stadler] and Fraser v Canada (Attorney General), 2020 SCC 28[Fraser]. [33] AC asserts that ACPA is trying to introduce evidence that was not before the CHRT because ACPA did not dispute the GorhamReport before the CHRT.

AC takes issue with the secondary references found at items 35 to 45 of ACPA’s BOA, with the exception ofitems 38 and 44, which it asserts relate to a government report and government newsletter, respectively. [34] It is well established that Charter cases cannot be determined in a factual vacuum: MacKay v Manitoba, (SCC),[1989] 2 SCR 357 at p 361. As stated in Danson v Ontario (Attorney General), (SCC), [1990] 2 SCR 1086 at pp 1101: In general, any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must beaccompanied by admissible evidence of the alleged effects.

In the absence of such evidence, the courts are left to proceed ina vacuum, which, in constitutional cases as in nature, has always been abhorred... [35] As noted in Bekker at paragraphs 12-14, the concerns that are relevant to a challenge under

section 15 require a complex, multi-factored contextual inquiry by the reviewing court as to whether the impugned legislation not only creates differential treatment, but alsoif it is discriminatory in the constitutional sense.

This may include social science and statistical data of which cross-examination may benecessary as well as the filing of evidence in rebuttal. [36] Such analysis is shown in Fraser starting at paragraph 98, where the Court reviewed commission reports, judicial decisions andacademic work in order to assess the assertions of the applicant that women had historically borne the overwhelming share of childcareresponsibilities, that part-time workers in Canada were disproportionately women, and that they were far more likely than men to workpart-time due to childcare responsibilities resulting in less stable employment and periods of "“scaling back at work”".

However, Fraserdoes not speak to the introduction of such evidence. [37] While in Stadler, the Court referred to four articles, which it permitted an intervener, the Social Planning Council, to file when itwas granted leave to intervene; in my view, this cannot be taken as authority for the proposition that parties are routinely permitted to filenew evidence in the form of secondary articles at the Court level. [38] It is trite law that absent a recognized exception, new evidence, even on constitutional issues, is not admissible on judicial review:Landau v Canada (Attorney General), 2022 FCA 12 [Landau] at para 11; Association of Universities and Colleges of Canada vCanadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 20; Forest Ethics AdvocacyAssociation v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics] at paras 40-46. [39] There is no dispute that the secondary articles sought to be introduced were not before the CHRT and none of this evidence fallswithin the exceptions enumerated in Access Copyright at paragraph 20.

It does not constitute general background information, addressprocedural defects before the CHRT, nor demonstrate that there was an absence of evidence underlying a finding of the CHRT. [40] The academic articles relied on by ACPA speak to negative stereotypes about older workers, ageism, and the security ofemployment in old age. This evidence goes to the merits of ACPA’s subsection 15(1) argument.

They relate to contested facts and are notarticles to which judicial notice can be taken: Khodeir v Canada (Attorney General), 2022 FC 44 at paras 21, 26 and 27. [41] Further, rather than submit this evidence through an expert affidavit, ACPA has filed this evidence as part of its BOA. In NationalR&D Inc v Canada, 2022 FCA 72 at paragraph 14, the Federal Court of Appeal commented on the impermissibility of this type ofpractice (see also Landau at para 12 and Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 88 at paras 12-14): ... In support, the appellant relies on an

article contained in the book of authorities. This, in my view, is an impermissibleattempt to establish, through the back door, a fact that should be a matter of evidence at trial. If there is a critical distinctionin the methodology used in the applied as opposed to natural sciences, then the appellant is required to establish that fact inevidence (Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), (SCC), [1999] 3 S.C.R.845, 180 D.L.R. (4th) 670). What is written in an academic journal cannot be taken on faith.

Matters of social, applied andnatural sciences must be adduced through experts, and who must be made available for cross-examination, as it is throughcross-examination that the credibility of the expert and the reliability of the evidence is tested (Canada (Citizenship andImmigration) v. Ishaq, 2015 FCA 151, [2016] 1 F.C.R. 686 at para. 21).

[ 42 ] By proceeding in this manner, ACPA has effectively insulated the evidence from cross-examination and rendered it impossible for this Court to determine its reliability: Forest Ethics at para 42 . Additionally, in some instances the reference is only to an excerpt of the

article such that the full context of the

article is not even present. I agree with AC, these secondary articles cannot be admitted. B. Is the Impugned Provision contrary to subsection 15(1) of the Charter [ 43 ] Subsection 15(1) of the Charter provides that: " Equality before and under law and equal protection and benefit of law " " Égalité devant la loi, égalité de bénéfice et protection égale de la loi " " 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.

" " 15 (1) " " La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques.

" [ 44 ] As set out in Fraser at paragraph 42 , " “substantive equality is the “animating norm” of the s. 15 framework ... substantive equality requires attention to the “full context of the claimant group’s situation”, to the “actual impact of the law on that situation”, and to the “persistent systemic disadvantages [that] have operated to limit the opportunities available” to that group’s members” " . [ 45 ] When assessing a claim under subsection 15(1) of the Charter , the Court asks two questions ( Centrale des syndicats du Quebec v Quebec (Attorney General) , 2018 SCC 18 at para 22 ; Fraser at para 27 ): 1) Does the impugned provision, on its face or in its impact, create a distinction based on an enumerated or analogous ground; and, if so, 2) Does it impose burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage, including a “ " historical” " disadvantage?

(1) Does the Impugned Provision draw a distinction based on age? [ 46 ] As summarized in Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux , 2018 SCC 17 at paragraph 26 , the purpose of the first part of the subsection 15(1) analysis is to ensure that subsection 15(1) is accessible to those whom it was designed to protect, and exclude claims that have nothing to do with substantive equality because they are not based on enumerated or analogous grounds that are constant markers of potential discrimination.

It does not require consideration of discriminatory impact, but focusses on the grounds of distinction. [ 47 ] In order for a provision to create a distinction based on a prohibited ground through its effects, it must have a disproportionate impact on members of a protected group: Fraser at para 52 . [ 48 ] ACPA asserts that the first stage of the subsection 15(1) test is easily met in this case. It argues that, on its face, the Impugned Provision creates a distinction based on age – i.e ., whether an employee has met the " “normal pensionable age under the pension plan” " .

It argues that this distinction is based on membership in an enumerated group – in this case, older workers. [ 49 ] AC emphasizes the contextual nature of the subsection 15(1) analysis and its focus on substantive rather than formal equality. It asserts that the distinction created by the Impugned Provision is not based on an enumerated or analogous ground. The Impugned Provision refers to the " “normal pensionable age” " , which may be determined by a given period of service, rather than age.

It argues that an employee’s period of service is not an immutable characteristic that has the character of an enumerated or analogous ground. [ 50 ] An analogous ground is one based on a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity: Withler v Canada (Attorney General) , [2011] 1 SCR 12 [ Withler ] at para 33 .

AC asserts that an employee’s period of employment or years of service is not a personal characteristic that falls under this definition. [ 51 ] AC argues that in order to satisfy the first part of the subsection 15(1) test, the Applicant was required to adduce evidence to establish that there is a disproportionate impact on the members of the asserted group that includes evidence about the situation of the claimant group and evidence about the results of the law.

It refers to the comments of the Federal Court of Appeal in Weatherley v Canada (Attorney General) , 2021 FCA 158 [ Weatherley ] at paragraph 39 , which refers to the Court in Fraser : [39] In Fraser , as a general matter, the majority of the Supreme Court instructs us that “[t]wo types of evidence” are “especially helpful in proving that a law has a disproportionate impact on members of a protected group” : first, “evidence about the situation of the claimant group” and, second, “evidence about the results of the law” (at para. 56) or the “results of a system” (at para. 58).

On the second type of evidence, what must be shown is “a disparate pattern of exclusion or harm” from the law “that is statistically significant and not simply the result of chance” (at para. 59). Inherent in this is a requirement to lead some evidence that the law being challenged causes or at least contributes to the impact. In other words, there should be “evidence…about the results produced by the challenged law” (at para. 60). Both types of evidence are not always required and evidentiary standards should not be applied too rigorously: Fraser at paras. 61 and 67 .

But claimants still have to lead some evidence to support their claim. [ 52 ] AC asserts that ACPA cannot succeed on the first part of the test because it has led no evidence and has not demonstrated that the Impugned Provision creates a disproportionate impact on members of a protected group. [ 53 ]

Section 2 of the Regulations defines " “normal pensionable age” " as:

" normal pensionable age under a pension plan, means the earliest date specified in the plan on which an employee can retire from his employment and receive all the benefits provided by the plan to which he would otherwise be entitled under the terms of the plan, without adjustment by reason of early retirement, whether such date is the day on which the employee has attained a given age or on which the employee has completed a given period of employment " " âge normal ouvrant droit à la pension " " , dans le cadre d’un régime de retraite, désigne la première date spécifiée à laquelle un employé peut prendre sa retraite et toucher les prestations auxquelles il aurait normalement droit en vertu du régime, sans rajustement à cause d’une retraite anticipée, que cette date soit celle d’un anniversaire de naissance ou le dernier jour d’une période d’emploi; " [ 54 ] I agree with AC that the length of an employee’s service on its own is not an immutable personal characteristic as it does not describe what a person is, but rather, what a person is doing or has done: Charles v Canada (Attorney General) (1996), 134 DLR (4 th ) 742 (ONSC) [ Charles ] at para 45. [ 55 ] However, unlike in Charles where the alleged disparate impact was solely based on years of service ( Charles at paras 42-46), in this case, the definition of " “normal pensionable age” " includes pensions that start paying benefits at a specific age, creating a distinction on age, although the age is not specifically identified, as well as those where the employee has completed a given period of employment. [ 56 ] As a matter of common sense, employees who are most likely to be impacted by pension eligibility determined by a set period of service are older employees given the length of service required to obtain that eligibility. [ 57 ] While limited evidence was advanced regarding the length of service generally required by these plans or the age at which employees in those positions begin working to determine their age of pension eligibility, given the logical connection between length of service and age, in my view it can be concluded that the Impugned Provision both directly and indirectly creates a distinction on the basis of age.

Further, for this part of the test and without opining on merits, I accept ACPA’s reliance on the facts relating to Sandra Anderson and Robert Lyon as proposed evidence as to the results of the law.

(2) Does the Impugned Provision violate the substantial guarantee of equality? [ 58 ] The parties acknowledge that there has been a development in the law since their memoranda were filed. Specifically, they note that the Supreme Court’s decision in Fraser altered the second stage of the

section 15 analysis in subtle ways. As set out at paragraphs 76-81 of Fraser : [76] This brings us to the second step of the s. 15 test: whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage ( Alliance , at para. 25). This inquiry will usually proceed similarly in cases of disparate impact and explicit discrimination. There is no “rigid template” of factors relevant to this inquiry ( Quebec v. A , at para. 331, quoting Withler , at para. 66). The goal is to examine the impact of the harm caused to the affected group.

The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion . . . [p]sychological harms . . . [p]hysical harms . . . [or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group (Sheppard (2010), at pp. 62-63 (emphasis deleted)). [77] The purpose of the inquiry is to keep s. 15(1) focussed on the protection of groups that have experienced exclusionary disadvantage based on group characteristics, as well as the protection of those “who are members of more than one socially disadvantaged group in society” (Colleen Sheppard, “Grounds of Discrimination: Towards an Inclusive and Contextual Approach” (2001), 80 Can.

Bar Rev. 893, at p. 896; see also Withler , at para. 58). As the Court noted in Quebec v. A when discussing the second stage of the s. 15 test: The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed. [para. 332] (See also Taypotat , at para. 20.) [78] Notably, the presence of social prejudices or stereotyping are not necessary factors in the s. 15(1) inquiry.

They may assist in showing that a law has negative effects on a particular group, but they “are neither separate elements of the Andrews test, nor categories into which a claim of discrimination must fit” ( Quebec v. A , at para. 329), since [w]e must be careful not to treat Kapp and Withler as establishing an additional requirement on s. 15 claimants to prove that a distinction will perpetuate prejudicial or stereotypical attitudes towards them.

Such an approach improperly focuses attention on whether a discriminatory attitude exists, not a discriminatory impact, contrary to Andrews , Kapp and Withler . [Emphasis in original; para. 327.] (See also paras. 329-31.) [79] The perpetuation of disadvantage, moreover, does not become less serious under s. 15(1) simply because it was relevant to a legitimate state objective.

I agree with Dean Mayo Moran that adding relevance to the s. 15(1) test — even as one contextual factor among others — risks reducing the inquiry to a search for a “rational basis” for the impugned law [...] The test for a prima facie breach of s. 15(1) is concerned with the discriminatory impact of legislation on disadvantaged groups, not with whether the distinction is justified, an inquiry properly left to s. 1 [...]

[80] Similarly, there is no burden on a claimant to prove that the distinction is arbitrary to prove a prima facie breach of s.15(1). It is for the government to demonstrate that the law is not arbitrary in its justificatory submissions under s. 1 [...] [81] In sum, then, the first stage of the s. 15 test is about establishing that the law imposes differential treatment based onprotected grounds, either explicitly or through adverse impact.

At the second stage, the Court asks whether it has the effectof reinforcing, perpetuating, or exacerbating disadvantage (Alliance, at para. 25). [59] ACPA contends that Fraser emphasizes the heavy importance on the discriminatory impact of the provision in question, by askingwhether the impugned provision "“has the effect of reinforcing, perpetuating, or exacerbating disadvantage”" (at para 81). ACPA assertsthat the allocation of resources and goal of the legislation discussed at paragraph 68 of the Decision and paragraph 71 of Withler areaccordingly no longer relevant.

It argues that arbitrariness is no longer necessary to the

section 15 analysis, but is instead relevant tosection 1. [60] AC concedes that Fraser refined aspects of the analysis under this part of the test; however, it refers to R v CP, 2021 SCC 19 [CP],decided after Fraser, at paragraph 145, which continues to refer to the contextual approach mandated in Withler as establishing theframework for the analysis: [145] In other words, it is the actual impact of the provision in its full context that should govern the analysis, and s. 37(10)should not be divorced from its entire legislative context.

An approach requiring line-by-line parity with the Criminal Codewithout reference to the distinct nature of the underlying scheme of the YCJA would indeed be contrary to the contextualapproach mandated in Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at paras. 73, 76 and 79.The analysis instead requires a “contextual understanding of a claimant’s place within a legislative scheme and society atlarge”; the court must ask “whether the lines drawn are generally appropriate, having regard to the circumstances of thepersons impacted and the objects of the scheme” (paras. 65 and 67).

Understanding the distinct legislative schemeunderlying s. 37(10) is crucial to the assessment of the actual impact of the law on young persons (see P. J. Monahan, B.Shaw and P. Ryan, Constitutional Law (5th ed. 2017), at p. 469). [61] AC asserts, and I agree, a contextual analysis remains part of the Court’s approach to substantive equality, requiring a balancing ofthe interests at play. As stated by the Supreme Court at paragraph 153 of CP: [153] ...

The inquiry under s. 15(1) of the Charter into the perpetuation of a disadvantage requires attention to “the fullcontext of the claimant group’s situation” and to “the actual impact of the law on that situation” (Withler, at para. 43; seealso Taypotat, at para. 17). The result of this contextual inquiry may in turn be to reveal that differential treatment isdiscriminatory because it perpetuates disadvantage, that it is neutral, or “that differential treatment is required in order toameliorate the actual situation of the claimant group” (Withler, at para. 39).

This Court must, therefore, in assessing theactual impact of a leave requirement, have regard to the full context of the situation of young persons, which, I find, includesthe fact that a structurally prolonged appellate review can be more prejudicial to them. [62] In my view, the purpose of the impugned provision in the context of the broader scheme is still a meaningful consideration, alongwith whether lines drawn are generally appropriate having regard to the circumstances of the groups impacted and the objects of thescheme: Withler at para 71.

Perfect correspondence between a benefit program and the actual needs and circumstances of the claimantgroup is not required. Allocation of resources and particular policy goals may also be considered: Withler at para 67. Contrary to theassertions of ACPA, I do read Fraser as changing this aspect of the law, particularly in view of the statements made in CP. [63] In this case, subsections 3(

b) and 5(

b) of the Regulations create a distinction when a claimant reaches "“normal pensionable age”".The issue is whether this draws a discriminatory distinction by denying a benefit in a manner that reinforces, perpetuates or exacerbatesdisadvantage as an employee gets older and reaches pensionable age. [64] As acknowledged in CP at para 142, "“[i]n this respect, it should also be borne in mind that age-based distinctions are generally a‘common and necessary way of ordering our society’ and are ‘not strongly associated with discrimination and arbitrary denial ofprivilege’ (Gosselin v.

Quebec (Attorney General), ""2002 SCC 84"", ""[2002] 4 S.C.R. 429"", at para. ""31"")”". [65] AC asserts that when one does a contextual analysis it arrives at the same analysis set out in Weatherley; that disability plans act asa form of insurance for workers where termination of compensation is necessary at some point. [66] As noted in Weatherley at paragraphs 24-29, an infringement of section 15(1) of the Charter cannot be deduced simply from thefact that legislation leaves a group, even a vulnerable group, outside a benefits scheme: [24] In Gosselin v.

Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 at para. 55, the Supreme Court held thatcourts cannot insist on “[p]erfect correspondence between a benefit program and the actual needs and circumstances of [an]applicant group.” While exclusion from participation in benefits programs “attracts sympathy”, the “inability of a givensocial program to meet the needs of each and every individual does not permit us to conclude that the program failed tocorrespond to the actual needs and circumstances of the affected group” (at para. 55). [25] This led the Supreme Court in Gosselin to hold that an infringement of section 15(1) of the Charter cannot be deducedsimply from the fact that benefits legislation leaves a group, even a vulnerable group, outside a benefits scheme (at para.55): The fact that some people may fall through the program’s cracks does not show that the law fails to consider theoverall needs and circumstances of the group of individuals affected, or that all distinctions contained in the lawamount to discrimination in the substantive sense intended by s. 15(1). [26] To the same effect is the Supreme Court’s decision in Law v.

Canada, (SCC), [1999] 1 S.C.R. 497,170 D.L.R. (4th) 1 at para. 105. This Court described Law’s contribution to our understanding of section 15(1) and the Plan

in this way: …[B]enefits legislation, like the [Canada Pension] Plan, is aimed at ameliorating the conditions of particulargroups. However, social reality is complex: groups intersect and within groups, individuals have different needsand circumstances, some pressing, some not so pressing depending on situations of nearly infinite variety.Accordingly, courts should not demand “that legislation must always correspond perfectly with social reality inorder to comply with s. 15(1) of the Charter”: Law, supra at paragraph 105. (Miceli-Riggins at para. 56.) [27] More recently, in Withler v.

Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, the Supreme Court heldthat the assessment whether benefits legislation offends section 15(1) must be conducted sensitively, keeping front of mindthe challenge of allocating scarce resources (at para. 67): In cases involving a pension benefits program such as this case, the contextual inquiry at the second step of thes. 15(1) analysis will typically focus on the purpose of the provision that is alleged to discriminate, viewed inthe broader context of the scheme as a whole. Whom did the legislature intend to benefit and why?

Indetermining whether the distinction perpetuates prejudice or stereotypes a particular group, the court will takeinto account the fact that such programs are designed to benefit a number of different groups and necessarilydraw lines on factors like age. It will ask whether the lines drawn are generally appropriate, having regard to thecircumstances of the persons impacted and the objects of the scheme. Perfect correspondence between a benefitprogram and the actual needs and circumstances of the applicant group is not required.

Allocation of resourcesand particular policy goals that the legislature may be seeking to achieve may also be considered.

In Withler, the Supreme Court also instructed (at paras. 38 and 66) that courts should give some margin of appreciationunder section 15(1) to the judgment calls made by legislators when assessing whether their benefits legislation improperlydiscriminates. [28] For these reasons, the Supreme Court has suggested that only something quite discernable or concrete—such as anillegitimate or arbitrary “singling out” of a particular group—can prompt the Court to find that benefits legislation infringessection 15(1): It is not open to Parliament or a legislature to enact a law whose policy objectives and provisions single out adisadvantaged group for inferior treatment: Corbiere v.

Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203. On the other hand, a legislative choice not to accord a particularbenefit absent demonstration of discriminatory purpose, policy or effect does not offend this principle and doesnot give rise to s. 15(1) review. This Court has repeatedly held that the legislature is under no obligation tocreate a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy,provided the benefit itself is not conferred in a discriminatory manner….

Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition thatexcludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining abenefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overallneeds it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overallpurpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particulargroup.

If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of thelegislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that fallswithin the general scheme of benefits and needs which the legislative scheme is intended to address. (Auton (Guardian ad litem of) v. British Columbia (A.G.), 2004 SCC 78, [2004] 3 S.C.R. 657 at paras. 41-42.) [29] But even then, a section 15(1) claimant may still not have enough to succeed.

This is because “[c]rafting a socialassistance program…is a complex problem, for which there is no perfect solution” and “[n]o matter what measures thegovernment adopts, there will always be some individuals for whom a different set of measures might have been preferable”:Gosselin at para. 55. In the same vein, this Court has put it this way: When presented with an argument that a complex statutory benefit scheme, such as unemployment insurance,has a differential adverse effect on some applicants contrary to

section 15, the Court is not concerned with thedesirability of extending the benefits in the manner sought. In the design of social benefit programs, prioritiesmust be set, a task for which Parliament is better suited than the courts, and the Constitution should not beregarded as requiring judicial fine-tuning of the legislative scheme. (Krock v. Canada (Attorney General), 2001 FCA 188, 89 C.R.R. (2d) 170 at para. 11.) [67] ACPA asserts that the focus of the analysis in this case is distinct from the focus in Withler on which the CHRT relied and fromWeatherley.

It notes that Withler was a challenge to the terms of a pension benefits plan, which were codified under statute, andWeatherley was based on a challenge to a benefits scheme. The present application does not challenge the terms of the GDIP. It assertsthat the challenge in this application is about whether the linkage between "“normal pensionable age”" and a disability plan isinappropriate. [68] AC argues that the same principles apply to the choices made with respect to subsections 3(

b) and 5(

b) of the Regulations; the rulesare not narrowly applicable to social benefits legislation, but to insurance schemes more generally. [69] As argued by AC, an example of this is set out in Landau at paragraphs 14-16, where the Court made a parallel of the plan at issue

in that case to an insurance scheme where some come out ahead and some do not, finding that private insurance schemes do not change the logic as set out in Weatherley : [14] The applicant’s challenge overlooks the nature and role of the Plan. The nature and role of the Plan rebuts allegations that it creates salient distinctions under section 15(1) or that any distinctions are discriminatory under section 15(1) or unjustified under

section 1 of the Charter . This scheme was designed to provide partial earnings replacement in certain circumstances and was never meant to be comprehensive or meet the needs of all contributors in every conceivable circumstance: Weatherley v. Canada (Attorney General) , 2021 FCA 158 at para. 10 . It is much like an insurance scheme full of cross-subsidization where some come out ahead and some do not. This sort of scheme also requires that clear and rigid criteria be drawn and specified for contributions and benefits.

As well, as explained in Weatherley , an increase in benefits or reduction of contributions for some often must result in the reduction of benefits or increase in contributions or both for others; and many of these others are needy and vulnerable and also arguably fall under section 15(1) of the Charter . [...] [15] Auton , in particular, recognizes the necessity of line-drawing and certainty in benefits schemes such as this so that the schemes can achieve their purposes.

It suggests (at para. 42) that section 15(1) claims like this are possible only where the legislative scheme targets groups for illegitimate reasons extraneous to the scheme. This is not the case here. [16] The recent Supreme Court case of Fraser v. Canada (Attorney General) , 2020 SCC 28 , 450 D.L.R. (4th) 1, analyzed and discussed in Weatherley , above, does not overrule or cast doubt on any of the above cases. [ 70 ] As noted by the CHRT, the Gorham Report supports a view that the scheme provided by subsections 3(

b) and 5(

b) of the Regulations and the concept of " “normal pensionable age” " is consistent with an income insurance scheme. [ 71 ] As set out at paragraphs 59, 63, and 67 to 69 of the Gorham Report: 59. By definition, insurance is to provide compensation for a loss. Disability insurance is to provide compensation for lost wages as a result of a disability. It follows that if a disabled worker would not have been working in the absence of the disability, then there should be no compensation for lost wages. [...] 63.

In order to provide compensation using the principles of insurance, it is necessary to make an assumption about when work would have ended and to apply that assumption as a condition of coverage. [...] 67. One way an insurance company protects against losses is to ensure that a person is only covered against the possibility of an actual loss. Providing income during a disability when there is no financial loss to the person would act to encourage potential abuse of disability coverage.

Consequently, benefits are limited to periods when a person has a reasonable probability to have remained employed in the absence of the disability. 68. Even if retirement was not a reason to limit the age at which disability benefits are payable the cost charged by the insurer would result in a limit. If disability benefits continued for life, the costs of the insurance would be so high that employers would likely refuse to provide the benefit at all or demand something cheaper which would result in benefits ceasing at some specified age. ... 69. ...

At any time when more than half of them are still working, then providing benefits is expected to over compensate fewer than 50% of the injured workers. At any time when less than half are still working, then providing benefits is expected to cover compensate more than 50% of the injured workers. The balance point is where half are expected to have stopped working. [ 72 ] The uncontested evidence, as recognized by the CHRT, was that indefinite disability benefit plans are not viable. Without a limit, the cost of insurance would be too high.

Plans become unviable when workers are between the age of 61 and 65. [ 73 ] However, ACPA now contests Mr. Gorham’s additional finding recognized by the CHRT that " “cessation of disability benefits at a lower age could be appropriate where the employment situation differs from the average for Canada, such as ...where the plan provides for an unreduced pension prior to age 65 in some circumstances” " . As explained by Mr. Gorham: 133. To be actuarially sound, there needs to be a point at which income benefits cease. In my opinion, there is no single correct age at which benefits should stop.

There is a range of ages that could vary based on retirement patterns of Canadian in general and of the employer in particular. Based on Canadian employment statistics, I believe that an appropriate range is between about age 61 and 65. 134. In my opinion, and ignoring any legislated restrictions, that should not preclude an employer adopting an earlier or later age to cease disability income benefits if the employment situation differs from the average for Canada. One such situation would be providing a pension plan with unreduced early retirement pensions that are payable earlier than age 61.

Another situation would be a workplace where employees routinely work past age 65. 135. In my opinion, the use of pensionable age is one appropriate method of setting a point at which disability benefits could cease. It recognises differing employment situations. For example, employees who have generous unreduced early retirement pensions will have an earlier pensionable age than those with less generous or no unreduced early retirement pensions. In my experience, employees with unreduced early retirement benefits generally retire, on average, at younger ages than those with unreduced early retirement pensions.

So using pensionable age as the cessation point can recognize differences in retirement patterns between different employers.

[74] I agree with AC that the use of "“normal pensionable age”" allows employers to have regard to the employee’s circumstances andpensionable benefit in line with the teachings of Withler at paragraph 67: [67] In cases involving a pension benefits program such as this case, the contextual inquiry at the second step of the s. 15(1)analysis will typically focus on the purpose of the provision that is alleged to discriminate, viewed in the broader context ofthe scheme as a whole. Whom did the legislature intend to benefit and why?

In determining whether the distinctionperpetuates prejudice or stereotypes a particular group, the court will take into account the fact that such programs aredesigned to benefit a number of different groups and necessarily draw lines on factors like age. It will ask whether the linesdrawn 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 notrequired.

Allocation of resources and particular policy goals that the legislature may be seeking to achieve may also beconsidered. [75] As noted by the CHRT in the Decision, the Regulations were based on recommendations from stakeholders after lengthyconsultations, which included balancing the interests of employers, employer organizations, underwriters of benefits plans, benefitconsulting firms, other human rights administrators and interested organizations. [76] The goal of the Canadian Human Rights Commission in creating exceptions to the prohibition on discrimination in benefit plans wasto recognize that "“some differentiation with respect to age, sex, marital status or physical handicap is not always undesirable in suchplans.”" (Canadian Human Rights Commission, Annual Report, 1979,

section 3.1.1) [77] In this case, the contextual factors demonstrate that the distinction made by "“normal pensionable age”" is a bona fide distinction. Itis not targeting groups for illegitimate reasons outside of the overall scheme.

Here, consistent with Withler and the goals pursued,terminating disability benefits when an employee has reached normal pensionable age does not put employees in an adverse situationbecause they are able to collect unreduced pension benefits. [78] As noted by the CHRT, this is in contrast with Talos where the termination of benefits at age 65 was not set-off by any othercompensatory arrangement.

As summarized by the CHRT, Talos dealt with section 25(2.1) of Ontario’s Human Rights Code, RSO 1990,c H-19 [Code], in conjunction with the Employment Standards Act (SO 2000, c 41) and its Regulations, and specifically carved out 65and older workers from protections with respect to different treatment in benefits plans, pension and other workplace plans, in a bid tomaintain flexibility in the workplace for parties to make arrangements that would respect the financial viability of those plans.

Theadjudicator found that a benefit differential that was only explained by the age of the employee would be prima facie age discriminationunder the Code. Accordingly, she held that a legislative provision that prevented a worker age 65 and older from being able to challengeany reduction or elimination of access to workplace benefits as age discrimination was prima facie a violation of subsection 15(1) of theCharter. [79] ACPA argues that the CHRT was not correct in its analysis of Talos and that the logic of Talos is compelling and should befollowed.

It contends that this logic can be applied equally well to the facts of this case, even though the same benefits are not at play. Itasserts that whether an employee has a good pension is not relevant to their equality rights.

Similarly, it argues that the followingreasoning held in Talos at paragraph 234 applies equally well to the circumstances of Sandra Anderson in this case: ..."absent healthcare benefits, an injured or ill worker who is 65 or over could be forced to retire because she cannot affordthe healthcare supports ...that would assist with her day to day health maintenance so that she is fit to remain at work with orwithout accommodated duties.

By removing healthcare benefits at age 65, it logically follows that older workers aredeprived of the supports available to their younger co-workers to maintain their fitness for work." [80] However, I disagree that such a parallel cannot be made. Rather, as argued by AC, the experience of Ms. Anderson while imperfectis consistent with the expectations set out in Withler, which recognizes perfect correspondence between a program and the actual needsand circumstances of a claimant group is not required so long as its objectives are met. In Ms.

Anderson’s case, she was still able toobtain compensation for lost wages as a result of her disability. As noted by the CHRT: [67] In this case, I find from the evidence that the disability benefits were designed to provide a measure of income loss toplan members should they become disabled and unable to work. However, if the member were eligible for an unreducedpension, then although their disability benefits were no longer available to them, if they became disabled, they could chooseto use their sick days and vacation and possibly unpaid leave before returning to work. That was the option chosen by RobertLyon.

Their other choice was to retire and collect their unreduced pension. That was the option chosen by Sandra Anderson. [81] ACPA argues that the CHRT’s reference to "“choice”" is problematic. It notes that the Court has consistently held that differentialtreatment can be discriminatory even if it is based on choices made by the affected individual or group: Fraser at paras 86-87; OPSEU vOntario (Government and Consumer Services), (ON GSB) [OPSEU] at paras 101-102. [82] However, I agree with AC that these comments must be considered in context, as must the Impugned Provision.

I do not read theDecision as suggesting that the choices made by Sandra Anderson somehow affected the impact of subsections 3(

b) and 5(

b) of theRegulations and how they should be perceived. [83] ACPA argues that there are fundamental human rights problems with linking the eligibility of disability benefits with pension plans.Particularly, it assumes that there will be a generous pension plan that substitutes for income lost through disability benefits which isoften not the case in a defined contribution plan. The provisions of the Regulations refer to disability plans generally not just long-termdisability plans, regardless of how long the disability is expected to last.

Further, not all pension plans offer full benefits at an age rangeof 61-65; some provide for a much earlier age. The effect of the Impugned Provision places control in the hands of the pension drafter,who is often unilaterally the employer. All of which it asserts is inconsistent with the broader equality guarantee. [84] The problem with ACPA’s arguments, however, is that they are not grounded in any evidence nor the objective of the Regulations.ACPA provides no evidence regarding the actual payouts of defined contribution plans or what constitutes a "“generous”" plan in these

circumstances, or any others. It has advanced no evidence on the application of the provisions of the Regulations to the termination ofshort-term disability benefits or any impacts of the termination of those plans on older workers. Further, the only pension plansreferenced by ACPA are collective agreements like those at issue in Healy v Gregory, [2009] OJ No 2562, (ON SC),or legislated pension plans as in the Public Service Superannuation Act, RSC 1985, c P-36.

There is no evidence before the Courtregarding pension plans in non-unionized contexts, or that such plans are being abused by employers in those settings. [85] The arguments made by ACPA are insufficient to challenge the evidence presented by Mr. Gorham, which was the evidence beforethe CHRT. [86] Mr. Gorham provided that the vast majority of long term disability plans provided by employers terminated benefits at age 65,which was the age that retirement benefits typically become available without reduction.

He noted this was because of historicalpatterns. [87] He found that the appropriate statistic to use in determining when to change from wage loss replacement to retirement income wasthe point at which about half the workforce had retired.

He opined that from an actuarial and insurance standpoint, it was appropriate toreplace loss of income benefits with retirement benefits at some point between ages 61 and 65 and that pensionable age was a reasonableproxy. [88] Further, ACPA’s arguments fail to recognize that there are some inherent distinctions when considering a provision based on age.As noted in McKinney v University of Guelph, (SCC), [1990] 3 SCR 229 at p 297: To begin with there is nothing inherent in most of the specified grounds of discrimination, e.g., race, colour, religion,national or ethnic origin, or sex that supports any general correlation between those characteristics and ability.

But that is notthe case with age.

There is a general relationship between advancing age and declining ability ... while we must guardagainst laws having an unnecessary deleterious impact on the aged based on inaccurate assumptions about the effects of ageon ability, there are often solid grounds for importing benefits on one age group over another in the development of broadsocial schemes and in allocating benefits ... [89] Provisions based on age, must also consider the natural cycle, bearing in mind both the "“vertical”" and "“horizontal”" needs of thepopulation as recognized in Withler at paragraph 76: [76] Garson J. explained that the government’s statutory benefit package must account for the whole population of civilservants, members of the armed forces and their families.

Each part of the package is integrated with other benefits andbalanced against the public interest. The package will often target the same people through different stages of their lives andcareers. It attempts to meet the specific needs of the beneficiaries at particular moments in their lives. It applies horizontallyto a large population with different needs at a given time, and vertically throughout the lives of the members of thispopulation. For younger employees, it acts as group life insurance by insuring against unexpected death at a time when thesurviving spouse would not be protected by a pension.

For older employees, it is intended to assist with the costs of lastillness and death. While it treats different beneficiaries differently depending on where they find themselves on this verticalscale, it is discriminatory neither in purpose nor effect. [90] ACPA refers to the fundamental importance of work in a person’s life, as an "“essential component of his or her sense of identity,self-worth and emotional well-being”": Reference Re Public Service Employee Relations Act (Alta), (SCC), [1987] 1SCR 313 at para 368.

ACPA argues that the impact of the Impugned Provision on a claimant group will perpetuate stereotypes andreinforce that older workers are less flexible, more resistant to change and less motivated. It asserts that it does this by assuming thatolder workers are less engaged with their employment and more likely to retire at the earliest opportunity. It relies on OPSEU and Talosas examples where provisions were found to constitute age discrimination and to perpetuate this negative stereotype. However, none ofthese decisions relate to long-term disability plans.

ACPA’s further reference to secondary sources in support of its argument isimpermissible, as noted earlier, as none of these secondary sources were before the CHRT nor admitted properly. [91] Even if one were to accept that older workers face stereotypes in the workplace, and have experienced certain disadvantagesassociated with those stereotypes, there is insufficient evidence of the actual impact of the loss of disability benefits on older workers, ora clear connection in the evidence between the loss of disability benefits to those asserted stereotypes and disadvantages. [92] As acknowledged by ACPA at the hearing before the CHRT, subsections 3(

b) and 5(

b) of the Regulations create a necessaryexemption to the individualized approach that would otherwise apply under the Act. Subsections 3(

b) and 5(b) "“recogniz[e] the validityof insurance principles, the necessity of those principles in coming up with a viable insurance scheme, and recogniz[e] that thoseprinciples are not based on stereotypes in the human rights language; they’re based on statistical analysis.”" [CHRT Transcript, page1369, lines 14-21] [93]

Section 15 ensures substantive equality for all employees. This does not mean that all workers will have the exact same disabilitycoverage because they are workers, or that there will be formal equality between older and younger workers: Withler at paras 2 and 71;Fraser at para 40. Rather, it requires that all workers be eligible to a form of compensation for loss of salary based on disability. In myview, the CHRT correctly found that this equality right was safeguarded under subsections 3(

b) and 5(

b) of the Regulations, and in effectby the Impugned Provision. [94] In my view, there is no violation of the substantive equality right under subsection 15(1) of the Charter by the Impugned Provisionof subsections 3(

b) and 5(

b) of the Regulations, as these subsections permit an acceptable balance that does not perpetuate adiscriminatory disadvantage based on age. IV. Conclusion

[ 95 ] For all of these reasons, it is my view that the application should be dismissed. As I have concluded that subsections 3(

b) and 5(

b) of the Regulations do not violate subsection 15(1) of the Charter and the Decision is not in error, there is no basis for me to continue with a

section 1 Charter analysis. [ 96 ] The parties have agreed that costs should be fixed in an amount of $3,000 (all inclusive) and I agree that this amount shall be awarded. JUDGMENT IN T-1588-19 THIS COURT’S JUDGMENT is that: 1 . The application for judicial review is dismissed. 2 . The Respondent shall be awarded costs in an amount fixed at $3,000. "Angela Furlanetto" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1588-19 STYLE OF CAUSE: AIR CANADA PILOTS ASSOCIATION v AIR CANADA AND ROY BENTLEY PLACE OF HEARING: HEARD BY VIDEOCONFERENCE DATE OF HEARING: May 12, 2022 JUDGMENT AND REASONS: FURLANETTO J.

DATED: JANUARY 30, 2023 APPEARANCES : Christopher Rootham For The Applicant Maryse Tremblay For The Respondent AIR CANADA No one Appearing For The Respondent ROY BENTLEY SOLICITORS OF RECORD : Nelligan O'Brien Payne Barristers and Solicitors Ottawa, Ontario For The Applicant

Borden Ladner Gervais Barristers and Solicitors Montréal, Quebec For The Respondent AIR CANADA Hamilton Duncan Armstrong & Stewart Barristers and Solicitors Surrey, British Columbia For The Respondent ROY BENTLEY