Court Rejects Charter Challenge to Age Limitation in the WSIA

Under the Workplace Safety and Insurance Act (WSIA) workers who are 63 years of age or older on the date of their injury can only get two years of loss of earnings (LOE) benefits.  Many worker advocates, including the OWA, have been trying to challenge this limitation. We were arguing that this was discrimination against older workers and violated the Canadian Charter of Rights and Freedoms (Charter).
In Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289,
the Divisional Court held that the limit on the receipt of LOE benefits based on age is not discrimination under the Charter.  The Court found, based on statistics from 2008, that 90% of Canadian workers stopped working at the age of 65 and that 90% of workers injured after age 61 return to work within two years.  The Court concluded that this means that the limitation in the WSIA is based on statistical facts and does not constitute discrimination.

Given the Court’s reliance on 2008 statistics, if future statistical data show that more people are working past age 65, another challenge may be warranted.  Nonetheless, the limitation based on age imposed by the WSIA will continue to be the law.

February 23, 2015