May 31, 2018

Exception Permitting Termination of Benefits at Age 65 Found Unconstitutional

The Human Rights Tribunal of Ontario (the “Tribunal”) has declared that a provision of the Ontario Human Rights Code (the “Code”) which purported to allow employers to terminate benefits for workers over age 65 is unconstitutional.
In 2006, the Code was amended to effectively eliminate mandatory retirement; however, an exception was created through section 25(2.1) of the Code to allow employers to cut off certain types of group health and life insurance benefits at age 65.  More specifically, section 25(2.1) of the Code, when read in combination with the Employment Standards Act, 2000 and its Regulations, permitted employers to terminate employee benefits at age 65 without the risk of infringing the right to freedom from discrimination on the basis of age.
In Talos v Grand Erie District School Board, Mr. Talos, a full-time high school teacher, brought a constitutional challenge against section 25(2.1) of the Code after his extended health, dental and life insurance group benefits were terminated by the School Board when he turned age 65.
In an interim decision on the constitutional issue, the Tribunal held that the impugned statutory provisions created a distinction between workers under the age of 65 and those who are 65 and older who perform the same work by exempting workers age 65 and older from the Code’s protections from differential treatment on the basis of age in respect of workplace benefit plans.  The Tribunal found that this distinction created by section 25(2.1) was a prima facie violation of section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”), which prohibits discrimination on the basis of age.
The Tribunal went on to conclude that less drastic means were available to achieving the pressing and substantial aim of preserving the financial viability of workplace benefit plans, such as by providing for lesser benefits.
As a result, the Tribunal held that the infringement could not be justified as a reasonable limit on Charter rights, pursuant to section 1 of the Charter.  The Tribunal therefore declared that section 25(2.1) was unconstitutional, and could not be used by the School Board as a defence to Mr. Talos’ claim of discrimination on the basis of age.
While employers are not statutorily required to provide group health benefits, those that do should be aware of this decision as it may no longer be enough to rely on the statutory exemption previously provided by section 25(2.1).
Complimentary Webinar – Constitutionality of Terminating Benefits at Age 65
Mathews Dinsdale will present a webinar on Tuesday, June 19, 2018.  Panelists will unpack the Talos decision and provide valuable insight into what these new developments mean for both unionized and non-unionized workplaces whose benefit plans limit entitlements beyond age 65.  Agenda and registration here.

If you have any questions about this decision or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.