Age-based discrimination and Ontario's workers' compensation laws

Background

Ontario's workers' compensation system was virtually free from age-based limitations from its inception in 1915 until the system was changed from a permanent disability pension system to a wage loss system in 1990. Since then, older workers in Ontario have faced a number of age based limitations on their workers' compensation benefits. Compensation for lost wages ends at age 65, or after 2 years for injuries after age 63. The employer's obligation to re-employ a worker after injury ends at age 65. Workers injured after age 64 and receiving compensation for lost wages are not eligible for compensation for loss of retirement income. Compensation for non-economic loss for workers aged 65 years is less than half of the amount paid for the same injury to a worker aged 25 years. Workers on permanent disability pension supplements for injuries before 1990 have their workers’ compensation benefits reduced annually by an amount equal to the increase in their Old Age security benefits.

When Ontario passed legislation to eliminate mandatory retirement in 2006 it stipulated that the new Human Rights legislation did not apply to the workers' compensation legislation. These limitations continue to affect older injured workers every day.

In "Age-Based Discrimination in Ontario's Workers' Compensation Laws: 'Promises to keep, and miles to go before we sleep…' " a paper presented [pdf] to the Canadian Conference on Elder Law held in Toronto on October 29, 2010, Injured Workers' Consultants' John McKinnon argues that the Charter of Rights provides a long road to a remedy by the Supreme Court of Canada for someone who is permanently injured, over age 65, ineligible for workers' compensation and unable to continue working. Community support for legislative reform is needed to remove these vestiges of mandatory retirement and age based discrimination from our workers' compensation system.

The paper also briefly touches on a larger age-related issue. There has never been any compensation for the loss of ability to contribute to the Canada Pension Plan or the related loss of CPP benefits. Workers’ compensation benefits are based on net earnings and there is no mechanism to maintain contributions or entitlement for those who are unable to work due to a workplace injury.

Canada Pension Plan

In October 2010 the Ontario Ministry of Finance continued its consultation on retirement income security with the release of a discussion paper. Feedback to the paper is to contribute to Ontario's position at the federal-provincial-territorial finance ministers' meeting on December 20, 2010.

  • Injured Workers' Consultants' Submission on (Nov. 30, 2010) supports the proposal to increase retirement benefits by increasing the earnings replaced by the CPP, and draws attention to a gap in the CPP that greatly reduces the retirement income of contributors who become disabled. IWC recommends doubling the retirement pension for all contributors by increasing the earnings replaced by the CPP; requiring workers’ compensation boards to maintain contributions to the CPP for lost earnings from work related disability; excluding all periods of disability from the contributory period of the retirement pension.
  • Canadian Labour Congress - "Don't stop the expansion of CPP" [Urgent appeal]