A recent decision of the Human Rights Tribunal of Ontario found that the Thames Valley District School Board did not discriminate against a retired teacher, who sought to be added to the occasional teaching list, when it created different criteria for retired teachers to qualify as occasional teachers than the criteria for teachers not receiving a teachers’ pension.

The Applicant, after she retired from the school board, applied to be added to its occasional teachers’ list, but her application was denied because she failed to meet the criteria established by the school board for retired teachers. The school board decided that retired teachers would be added to the elementary occasional list only if they were certified in one or more of the following subjects: French, Special Education, Music or Technology. However, new graduates, permanent part-time teachers and experienced teachers new to the Board could be added to the occasional list without having such certification. The Applicant did not hold certification in any of these areas.

The Applicant alleged that only applying the criteria to retired teachers constituted age discrimination, because retired teachers are necessarily older than new graduates who, in comparison to retired teachers, are young.

The Tribunal found that, as a group, retired teachers can be identified by age, because their pension requires that they meet a factor of at least 85, which is a combination of years of work and age, before they can retire and receive an unreduced pension. The Tribunal also found that retired teachers can be identified by employment status. The adjudicator stated that:

If the distinction in this case is based only on the fact that the group of retired teachers are retired and in receipt of a pension, and not because of age, the distinction is not based on a prohibited ground and is not covered by the Code.

The Tribunal found that the policy did not exclude older teachers who were not retired, such as a part-time permanent teacher who might supplement his or her income or an experienced teacher new to the school board. Further, the Tribunal found that individuals who retired from other professions, were collecting a pension and subsequently attended Teachers’ College and became new teachers were not restricted based on their age. The Tribunal found that,

…the policy does not create a distraction [distinction] between younger and older teachers. It rather creates a distinction between those teachers who are eligible to be hired for permanent positions and those teachers who are not eligible for permanent positions.

Further, the adjudicator noted that it was the Applicant’s decision to retire when she did, and that she had a choice to remain a permanent employee and seek part-time employment and seek occasional work without being impacted by the policy.

The Tribunal held that the evidence established that the distinction created by the policy was based on the fact that the Applicant was retired and in receipt of a pension and not because of her age.

The reasoning that not all older teachers would be caught by the policy distinction, and therefore not discriminated by reason of age, has received some criticism. Another way in which to consider this decision is to consider that the teacher in question is not disadvantaged by reason of age, for she could have decided to remain a permanent teacher of the school board. Instead, the teacher in question has been disadvantaged by reason of her decision to retire and collect a pension, which is economic factor and not protected by the Human Rights Code.