Injured workers groups in Ontario continue to fight for the removal of an age cap on workers’ compensation benefits.
Since 1990, workers injured on the job have been permitted to be compensated for the loss of wages until the age of 65 if they were under the age of 63 when the injury occurred.
Workers injured at age 63 get a maximum of two years of lost-wage benefits.
The Ontario Human Rights Commission ruled mandatory retirement at age 65 to be discriminatory in 2005, but workers’ groups say the age restriction for WSIB benefits was maintained.
A Charter challenge was made in 2008, but the province was successful in defending the age cutoff before a WSIB Appeal Tribunal, with the decision later upheld by a judicial review.
Injured workers continue the fight, saying a lot has changed since those initial cases.
They noted the participation of older workers in the labour force has increased significantly, and the age cutoff should no longer be acceptable as the cutoff point for workers’ compensation benefits.
Chris Grawey of the Injured Workers Community Legal Clinic notes Alberta and B.C. offer more flexible and reasonable approaches to wage loss benefits that Ontario should consider.
“We strongly urge the provincial government to use the approaches from BC and Alberta as a starting point to amend the discriminatory sections of the act,” says Grawey.
“Any legislative change must also include retroactive financial restitution for the injured workers who unfairly lost out on benefits because of the discriminatory nature of the existing law.”
John McKinnon, a lawyer with the legal clinic, adds that as the number of older adults continue to work past 65, the number of injured workers claims also rises.
“When the divisional court was looking at the age cutoff, the WSIB had 4,047 claims by workers age 63 and older,” says McKinnon.
“The number of claims in 2024 by workers age 65 and older was 16,698. That’s more than a 400 % increase in injured workers in Ontario over the last 15 years. And they’re not adequately protected by a worker compensation system.”
The legal clinic and others have ongoing appeals at the WSIB.
They are prepared to take further court action if the tribunal does not accept its chart arguments but would rather the government take action to remedy the issue.
