No benefits after 65? That’s discrimination: Tribunal

Ontario decision comes long after restrictions on mandatory retirement
||Last Updated: 06/13/2018
Employment law
The Human Rights Tribunal of Ontario (HRTO) has decided the Ontario Human Rights Code, and related provisions in the Employment Standards Act, amount to age discrimination and violate the Canadian Charter of Rights and Freedoms. Google Street View

Back in 2006, Ontario’s Human Rights Code was changed to protect employees against discrimination on the basis of their age, such as hiring, promotion, training or termination (including mandatory retirement). But for some reason, employee benefits didn’t warrant the same protection.

But the Human Rights Tribunal of Ontario (HRTO) has since decided the code, and related provisions in the Employment Standards Act, amount to age discrimination and violate the Canadian Charter of Rights and Freedoms.

The case concerned Wayne Talos, a teacher at the Grand Erie District School Board in Brantford, Ont., whose extended health, dental and life insurance benefits ended when he turned 65, though he was still working full-time. These benefits were of considerable help when it came to caring for his gravely ill wife.

Talos alleged the exception in the Human Rights Code infringed his equality rights and was unconstitutional, and he sought monetary compensation of $160,000 for lost benefits and compensation for injury to dignity, feelings and self-respect.

In its decision, the tribunal looked extensively at Bill 211, an “Act to amend the Human Rights Code and certain other acts to end mandatory retirement” which was intended to end the upper limit on age that deprived workers from code protection when it came to involuntary retirement, but “preserved the ability to employers to provide differential benefits and pension plan contributions for workers 65 and older in a bid to maintain the financial viability of those plans.”

This “carve-out” was questioned by HRTO associate chair Yola Grant in her May 18 decision:

“I find that the policy choice to carve out workers age 65 and older relied on the insurance industry’s expectation of costs increases, an expectation that was not empirically supported in 2005. This policy choice by the legislature ignored ‘independent’ research that indicated little change to the cost of benefit plans in Manitoba and Quebec post-mandatory retirement.”

Bill 211’s purpose to maintain the financial viability of various benefits and pension plans was not supported by any empirical evidence concerning the proportion of workers who would likely remain active after age 65, said Grant, or whether maintenance of these plans would be cost-prohibitive, or whether age differentiation in benefits was necessary to ensure the viability of the group insurance plans.

And since then, more credible actuarial data shows there is no “steeper curve” in costs for workers 65 and older, and that “the policy choice to exclude workers age 65 and older from equal protection in employment benefits appears arbitrary and not ‘within a reasonable range of choices’ to which this tribunal should accord deference,” said Grant.

There are various ways to manage plan costs should increases become unsustainable, she said, so “the legislature could have devised a less intrusive means to meet the objective of maintaining the financial viability of workplace group benefit plans.”

“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,” said Grant.

The impugned provisions do not minimally impair the rights of these older workers, as an employer is not required to demonstrate that their exclusion from employment benefits is reasonable or bona fide, or justified on an actuarial basis, or because their inclusion would cause undue hardship.”

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