This week, the Human Rights Tribunal of Ontario ruled that it is unconstitutional for employers to eliminate or reduce benefits for employees over 65.
In this Talos v Grand Erie District School Board, a teacher, Mr. Talos, had his health, dental, and life insurance benefits terminated when he turned 65, despite maintaining his job as a full-time teacher. He filed a claim against the Grand Erie District School Board, arguing that this termination violated his constitutional rights under section 15(1) of the Charter of Rights and Freedoms, which prohibits discrimination based on age. The School Board argued that this termination was justified by the Ontario Human Rights Code and the Employment Standards Act, 2000 (ESA).
While the Employment Standards Act, 2000 prevents employers from offering unequal benefit plans on the basis of age , associated regulations specify that “age” refers only to “any age of 18 years or more and less than 65 years.” As a result, while employers may not offer differing benefit plans to those between 18-64, this protection does not extend to workers 65 years and older. This resulting difference is confirmed in the Ontario Human Rights Code, which notes that benefit plans that comply with the ESA do not violate employees’ rights to “equal treatment with respect to employment without discrimination.” The HRTO confirms that a plain reading of these provisions indicates that “it is permissible for employers to provide unequal benefits to employees age 65 and older…compared to employees age 18 to 64.”
However, given the age discrimination that results, the HRTO ruled that “s. 25(2.1) of the Code, in conjunction with s. 44 of the ESA and the relevant provisions of O. Reg. 286.01, violates s. 15 of the Charter.” The statutory framework permitting employers to reduce or eliminate benefits for workers aged 65 and over, like Mr. Talos, is thus unconstitutional.
Preventing employment discrimination on the basis of age is essential in an era in which many employees continue working past age 65 due to financial need. The Ontario Human Rights Commission, who intervened in this case, explains the implications of the loss of benefits for workers 65 and older:
“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.”
Hopefully the HRTO’s decision will encourage employers to ensure their benefit plans do not discriminate on the basis of age, and will prompt an amendment to the current statutory framework that permits such discrimination.
This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.
 SO 2000, c 41, s 44(1)
 O Reg 286/01, s 1.
 RSO 1990, c H.19, s 25(2.1)
 Talos v Grand Erie School Board, 2018 HRTO 680 at para 188
 Ibid at para 244.
Photo attribution: Alpha Stock Images (http://alphastockimages.com/), Nick Youngson (http://nyphotographic.com/)