Age discrimination in employee benefits plans unconstitutional: Ontario Human Rights Tribunal

The Ontario Confederation of University Faculty Associations (OCUFA) was an intervenor in an Ontario human rights case involving age discrimination in employment benefits for those who are 65 years and older.

Last month, the vice chair of the Ontario Human RIghts Tribunal (OHRT) issued an interim decision which found that subsection 25(2.1) of the Ontario Human Rights Code, as well as related provisions in the Employment Standards Act and its regulations, amount to age discrimination and violate section 15 of the Canadian Charter of Rights and Freedoms. The interim decision can be found here: Talos v Grand Erie District School Board.

Emma Phillips and Dan Sheppard, counsel at Goldblatt Partners who provided legal support to OCUFA in its intervention, will be preparing a summary of the Ontario Human Rights Tribunal's interim decision and a consideration of next steps. OCUFA will share the summary with faculty associations when it receives the document. The interim decision and possible next steps will also be discussed at OCUFA's October Board meeting.

Ontario Human Rights Commission Media Release

June 4, 2018

OHRC successfully challenges restrictions to benefits for workers aged 65+

The Ontario Human Rights Commission (OHRC) intervened in Talos v Grand Erie District School Board to challenge the provision of Ontario's Human Rights Code (Code) that allowed employers to cut or reduce benefits to workers aged 65 and over. The Human Rights Tribunal of Ontario (HRTO) found that subsection 25(2.1) of the Code, as well as related provisions in the Employment Standards Act and its regulations, amount to age discrimination and violate section 15 of the Canadian Charter of Rights and Freedoms. 

Other intervenors who argued that there was a violation of the Charter included the Elementary Teachers' Federation of Ontario, Ontario Elementary Catholic Teachers' Association, and the Ontario Confederation of University Faculty Associations.

Many reports show that more Canadians are working past age 65 because they can't afford to retire. This is particularly true for people who have experienced disruptions in their career, including women who have taken time off to care for children, recent immigrants, and people with disabilities. The loss of benefits reinforces stereotypes about older workers being less valuable and worsens the economic disadvantage vulnerable people face.

As a result of the HRTO's decision, many employers across Ontario may be required to change group health, dental and life insurance benefit plans if they offer fewer or no benefits to employees age 65 and older compared to younger employees. Employees should not face blanket exclusions because of their age: instead, age-based distinctions in benefits should be based on accepted insurance practice and credible actuarial data. In fact, the actuarial evidence the OHRC gave in Talos showed that it is financially sustainable to provide employees age 65 and older with health and dental benefits and with modified life insurance benefits.

"All Ontario workers deserve fair benefits," says OHRC Chief Commissioner Renu Mandhane. "The OHRC 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."