EMPLOYEE RIGHTS AND BENEFITS - Benefits - Disability - Entitlement

Appeal by the Union from the dismissal of its application for judicial review of grievance arbitration board (Board) decision. The Board determined that the respondent employer’s long-term disability plan discriminated based on age, but that it was saved under s. 7(2) of the Alberta Human Rights Act because it was part of a bona fide group or employee insurance plan. Pursuant to the collective agreement, the employer agreed to provide short and long-term disability benefits to its employees. The long-term disability benefits were provided by a third party insurer, Sun Life. Under the terms of the Sun Life policy, long-term disability benefits ended on the earlier of: a) when an employee reached age 65; and b) when a disabled employee retired on pension with the employer or was eligible to retire with a full pension or a full pension equivalent. The grievor, who had worked for the employer for over 35 years, became unable to work and began receiving disability benefits. After approximately one year of receiving benefits, he became eligible to retire based on his age and years of service, and his long-term disability benefits ceased. He filed a grievance arguing that he should be entitled to remain on disability benefits until he chose to retire, or until age 65. He submitted that terminating his disability benefits when he became eligible to retire, even though he would prefer not to retire, was discrimination based on age. The majority of the Board held that the long-term disability plan was discriminatory based on age, but was saved by s. 7(2) of the Alberta Human Rights Act as it was part of a bona fide employee insurance plan. On judicial review, the judge found no reviewable error in the Board’s decision.

HELD: Appeal dismissed. The long-term benefits plan stipulated that benefits stopped on the earlier of age 65 and entitlement to full pension. It was apparent that the Sun Life policy could have provided for a later termination date, in which event disabled employees would be have eligible to receive benefits for a longer period. However, the fact that there might be a more generous benefits plan conceptually did not mean that the existing plan was not bona fide. Further, while the bona fides of a particular insurance or pension plan might be justified based on actuarial or statistical evidence, such evidence was not a requirement in every case. The judicial review judge was correct in determining that there was nothing incorrect or unreasonable about the Board’s decision that the long-term disability policy complied with the terms of the Act. The plan in question was a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights.

International Brotherhood of Electrical Workers Local 1007 v. Epcor Utilities Inc., [2017] A.J. No. 999, Alberta Court of Appeal, R.L. Berger, F.F. Slatter and J. Strekaf JJ.A., September 29, 2017. Digest No. TLD-October232017002