11/21/2012 03:30 EST | Updated 01/21/2013 05:12 EST

Ontario driver argues higher premiums for those over 80 is age discrimination

TORONTO - Whether an insurance company can charge more for drivers over the age of 80 is the subject of a two-day human-rights hearing slated to start Thursday in a case that could affect thousands of Ontario seniors.

In his complaint, Denis Olorenshaw argues that setting higher premiums for drivers based on their plus-80 status amounts to age discrimination that can't be justified.

"They don't have the legal basis...for increasing a premium for an 80-year-old driver," Olorenshaw said in an interview Wednesday. "It's serious business."

Olorenshaw, 92, of Toronto, launched his complaint after he began shopping around for auto insurance in 2009.

Both he and his daughter had identical Toyotas purchased at the same time and lived in the same condominium. However, his daughter, then aged 62, was given a lower quote from the brokerage company Atrens-Counsel on behalf of Western Assurance.

"There was a $250 difference in the premiums," Olorenshaw said. "I didn't buy it."

Even though he managed to find quotes from other companies that did not charge the over-80 group more, Olorenshaw said he decided to pursue the case "for the principle and the benefit of other seniors."

He and Western Assurance are both relying heavily on a 1992 Supreme Court of Canada decision that an insurance company was entitled to charge more for single male drivers under 25.

Essentially, the high court found the discrimination was justified because the higher premiums were based on the higher risks posed by the young men and there was no practical alternative.

Western Assurance maintains charging aged drivers more is squarely in line with the Supreme Court ruling and that its age discrimination is — in the words of the court — reasonable and bona fide.

It notes age is typically used as a risk factor in determining rates in a risk-classification system, and the provincial insurance regulator would have approved the rate it offered Olorenshaw.

Olorenshaw, who is representing himself before the Human Rights Tribunal of Ontario, disagrees. Western, he says, has not shown that drivers over 80 collectively pose greater risks than younger drivers, such as those between 65 and 79.

"This insurance company that I am complaining about ... does not have the right industry statistical information to back this up," he said.

In fact, he said, older drivers often have better judgment born out of decades of experience, and other companies didn't quote him a higher premium — one even quoted him a lower rate than his daughter's.

In addition, insurance companies now have a reasonable alternative that could obviate any need for an age-based premium called "Pay-As-You-Drive," he said.

Essentially, the system — in place in Quebec and many U.S. states — charges premiums according to distance driven.

Olorenshaw said many seniors don't drive much and that should be a factor.

In an interim decision in March, the adjudicator, Eric Whist, dismissed the complaint against the brokerage, saying it had nothing to do with the rate setting.

He ordered the complaint against Western to go to the hearing that starts Thursday, noting the uneasy relationship that exists between insurance companies and traditional human rights.

"The application against Western Assurance will proceed to a hearing on its merits," Whist found. "I cannot conclude that the application has no reasonable prospect of succeeding."