Case Comment: Ontario Human Rights Tribunal Makes Finding Re Age Discrimination in Benefits

13 July 2018

By Gurinder Cheema

On May 18th, 2018, the Human Rights Tribunal of Ontario issued an important decision in the case of Talos v. Grand Erie District School Board. The Tribunal found that terminating an employee’s health, dental and insurance benefits at age 65 is unconstitutional. This blog summarizes the case and discusses its significance.

Summary of the Case

Talos v. Grand Erie District School Board concerned a worker who lost his employee benefits (extended health, dental and life insurance benefits) when he turned 65, even though he continued to work as a teacher. Mr. Talos was financially motivated to continue working because his benefits assisted with his family’s medical expenses.

Section 25(2.1) of the Ontario Human Rights Code (the “Code”), together with the Employment Standards Act (ESA) and its Regulations, allows age-based distinctions in benefits coverage. Mr. Talos filed a claim against his employer, Grand Erie District School Board (GEDSB), alleging discrimination with respect to employment because of age. He argued that the discrimination he experienced infringed his right to equality under section 15(1) of the Charter, and that GEDSB had failed to discharge its onus of justifying the infringement under s. 1 of the Charter.

The Tribunal addressed Mr. Talos’ claim by examining three issues:

  • Whether Mr. Talos had standing to bring his constitutional challenge;
  • Whether s. 25(2.1) of the Code infringes section 15(1) of the Charter; and
  • Whether the infringement is justified under section 1 of the Charter.

The Tribunal found Mr. Talos had standing to bring his constitutional challenge on two grounds: “as a person who directly experienced disadvantage and as a member of the group “65 and older” workers who experienced disadvantage through the loss of workplace benefits and the loss of Code protection.”

With respect to the discrimination question, the Tribunal held that section 25(2.1) creates a prima facie distinction based on age, an enumerated ground under s. 15(1) of the Charter. According to the Tribunal, this distinction created various disadvantages for Mr. Talos. The Tribunal noted that section 25(2.1) of the Code, in conjunction with the ESA and its Regulations, perpetuates stereotypes that older workers are less worthy of compensation and equality protections than younger workers.

As for the section 1 analysis, the Tribunal noted that the objective of section 25(2.1), namely preserving the viability of benefits plans, is pressing and substantial. The objective and section 25(2.1) are also rationally connected. However, the Tribunal found that section 25(2.1) is not justified under section 1 of the Charter. The Tribunal reasoned as follows:

[283]     After considering all of the evidence, I conclude that the age 65 and older group need not be made vulnerable to the loss of employment benefits without recourse to a (quasi-constitutional) human rights claim in order to ensure the financial viability of workplace benefits plans. The government’s age limit of 65 for protection from discrimination in the provision of benefit and insurance plans appears unacceptable given the cogent evidence to the contrary that there is no close link to costs and age. As stated above, there are other alternatives available to the Government that would less impair the rights of Mr. Talos and workers age 65 and older, such as requiring any age-based differentiation in a workplace benefits plan to be reasonable and bona fide with a protection against undue hardship available to employers.

The Significance of this Decision for Older Workers

Until fairly recently, mandatory retirement was legal under many human rights statutes in Canada. In McKinney v. University of Guelph (1990), the Supreme Court of Canada found that mandatory retirement at age 65 was part of “the very fabric of the organization of the labour market.” However, in Tétreault-Gadoury v. Canada (1991), the Supreme Court emphasized the importance of individualized assessments of age discrimination. Ontario eliminated mandatory retirement in 2006, five years after the Ontario Human Rights Commission (OHRC) issued a report calling for legislative change. Similarly, between 2007 and 2009, Newfoundland and Labrador, Saskatchewan, British Columbia and Nova Scotia all eliminated mandatory retirement. In 2011, the federal government passed legislation that eliminated mandatory retirement for federally regulated employees.

However, differential treatment of older workers is permitted in benefit plans. In Ontario, such legislative provisions were introduced when mandatory retirement was eliminated in 2006. Specifically, Bill 211 introduced section 25(2.1) into the Code. Similar legislative provisions can be found in the human rights codes of British Columbia, Alberta, New Brunswick, Saskatchewan and Nova Scotia. The codes of these provinces permit age-differentiation in benefit plans where it is bona fide. Notably, Manitoba’s legislation, The Human Rights Code, has no such carve out.

Quebec and Prince Edward Island also have similar provisions to those of British Columbia, Alberta, New Brunswick, Saskatchewan and Nova Scotia, though without use of the term bona fide:

Charter of Human Rights and Freedoms, Quebec

20.1. In an insurance or pension contract, a social benefits plan, a retirement, pension or insurance plan, or a public pension or public insurance plan, a distinction, exclusion or preference based on age, sex or civil status is deemed non-discriminatory where the use thereof is warranted and the basis therefor is a risk determination factor based on actuarial data.

Human Rights Act, Prince Edward Island

11. The provisions of this Act relating to discrimination in relation to age or disability do not affect the operation of any genuine retirement or pension plan or any genuine group or employee insurance plan.

The case is significant for several reasons. For many seniors, work is a valuable part of life or it is something they cannot afford to lose. As articulated by the OHRC, “The loss of benefits reinforces stereotypes about older workers being less valuable and worsens the economic disadvantage vulnerable people face.” The case raises several ethical questions, such as how employers can treat older workers more equitably and value their contributions.

Employers in Ontario may want to review their benefits plans. Renu Mandhane, the Chief Commissioner of the OHRC stated:

 “The ORHC encourages the provincial government to protect all workers across the province and promote compliance with the Charter by making amendments to the statutory framework, including the Code. We’ve also reached out to human resource professionals and business leaders to advise them of the decision so they can make sure their benefit plans are consistent with the law.”

There are currently no updates with respect to whether the decision will be reviewed or appealed. However, given the significance of the decision, it seems likely that it will be reviewed by a higher court.

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