Human Rights Tribunal of Ontario: Providing Different Employment Benefits Based on Age is Unconstitutional

26 October 2018
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On May 18, 2018, the Human Rights Tribunal of Ontario ("HRTO"), held in Talos v. Grand Erie District School Board, that the Ontario Human Rights Code (the "Code") provision allowing employers to provide different benefits to employees based on their age violates section 15 of the Canadian Charter of Rights and Freedoms, and is not saved under section 1 of the Charter (2018 HRTO 680 (CanLII)).

Wayne Talos, a high school teacher with the Grand Erie District School Board (the "School Board"), brought the HRTO application in 2012 when his health and dental benefits were cut off by the School Board when he turned 65. Mr. Talos's application argued that the provision of the Code that allowed his employer to take this step amounted to age discrimination and was unconstitutional.

The provision in question, section 25(2.1) of the Code, worked with the Ontario Employment Standards Act ("ESA") and its Regulations to create a distinction between workers who are under age 65 and those who are over age 65. Specifically, though the Ontario government amended the Code in 2006 to prohibit mandatory retirement, the new provision permitted employers to cut off certain group benefits for workers when they turned 65.

The Elementary Teachers' Federation of Ontario ("ETFO") and the Ontario English Catholic Teachers Association ("OECTA") intervened in the HRTO proceeding in support of Mr. Talos's position. ETFO and OECTA opposed the School Board and the Attorney General of Ontario, which argued that a 1990 Supreme Court of Canada decision upholding mandatory retirement demonstrated that the differential treatment was constitutional. The Attorney General and the School Board also relied on actuarial evidence to suggest the cost of providing benefits to employees over 65 would be prohibitive, and argued that the provision in question promoted flexibility for employees and employers in collective bargaining.

The HRTO rejected these arguments in favour of ETFO and OECTA's arguments and evidence. The HRTO held that "the financial viability of workplace benefits plans can be achieved without making the age 65 and older group vulnerable to the loss of employment benefits without recourse to a (quasi-constitutional) human rights claim." This decision applies to health benefits and life insurance benefits, and not to long-term disability insurance, pension plans and superannuation funds.

As a result of this decision and ETFO and OECTA's efforts, employers can no longer provide age-differentiated health and life insurance benefits.

Cavalluzzo LLP is proud to represent ETFO and OECTA in this proceeding and of the result that has been achieved.

A copy of the HRTO decision can be found here.

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