In a long-awaited Interim Decision issued on May 18, 2018, the Ontario Human Rights Tribunal (the “HRTO”) found in favour of Wayne (Steve) Talos, an applicant who is over 65 years of age and who claimed that he had experienced discrimination on the basis of age with respect to workplace benefits. The Tribunal found that Mr. Talos’ rights under section 15, the equality provision of the Charter of Rights and Freedoms (the “Charter”), were infringed by application of section 25(2.1) of the Ontario Human Rights Code (the “Code”) and the Regulations to the Employment Standards Act, 2000 (the “ESA”) because his workplace benefits were terminated at age 65. The Tribunal found that the respondent school board had not discharged its onus to justify the infringement under section 1 of the Charter.

Background

Mandatory retirement in Ontario ended in 2006 when Bill 211, the Ending Mandatory Retirement Statute Law Amendment Act, 2005, was enacted. Among other things, Bill 211 passed into law section 25(2.1) of the Code, which, in conjunction with the ESA, permits employers to differentiate between workers under the age of 65 and those over the age of 65 with respect to workplace group benefits coverage.

Mr. Talos is a teacher for the Grand Erie District School Board (the “School Board”) who continued to work past 65 years of age. Under the terms of the School Board’s benefits plan, his extended health, dental, and life insurance benefits were terminated when he turned 65 even though he continued to work full-time.

In 2012, Mr. Talos filed an application with the HRTO alleging that the School Board’s benefit plan was discriminatory and that the termination of his benefits at age 65 was contrary to the Code.

In a 2013 interim decision, the HRTO found that a plain reading of the legislation makes it clear that the Code does not prohibit discrimination in benefit plans with respect to employees who are over the age of 65. Mr. Talos subsequently filed a Notice of Constitutional Question indicating that he intended to argue that the Code violated the Charter.

The Charter Decision

The HRTO heard evidence from several witnesses, including expert evidence from actuaries, and from several intervenors, including the Ministry of the Attorney General of Ontario, the Ontario Human Rights Commission and the Elementary Teachers Federation of Ontario. In a 112 page decision, it found that Mr. Talos had experienced a direct disadvantage as a result of section 25.1 of the Code, which disadvantage could not be justified under the Charter.

According to the HRTO:

  • Section 25.1 of the Code in conjunction with the ESA creates a distinction between employees who are over and under the age of 65. Employees under the age of 65 (and older than 18) are, subject to certain narrow exceptions under the Code, protected from discrimination on the basis of age in the workplace; employees age 65 and over are not. Such a distinction is “prima facie” a violation of the Charter.
  • The School Board’s argument that Mr. Talos had not suffered a disadvantage because he had a long and successful career as a teacher, was well-compensated, was a member of a union and had a generous pension was irrelevant to the question of whether his Charter rights had been violated. Mr. Talos was denied the protection of the Code solely because he was over the age of 65.

Having found a violation of the Charter, the HRTO considered whether the violation could be justified. Under section 1 of the Charter, the rights and freedoms protected thereunder can be limited provided the limits are reasonable and justified. The HRTO found that the violation of Mr. Talos’ Charter rights was not reasonable or justified under section 1.

According to the HRTO:

  • The government objective behind the legislative provisions was to maintain the financial viability of benefit plans; this is a pressing and substantial objective. However, the scope and degree of the resulting impairment was unacceptable.
  • The Attorney General of Ontario failed to demonstrate that the policy choice at the time of the passage of Bill 211 adequately considered the impact on workers over the age of 65.
  • There was little, if any, empirical evidence to support the government’s position that the distinction between workers over and under the age of 65 was necessary to maintain the financial viability of benefit plans.
  • Although there were other options available to the legislature, including allowing the provision of lesser or no benefits to workers over the age of 65, where it is reasonable and bona fide to do so, “it appears that there was no exploration of other approaches besides the “blanket” carve out that was legislated.” The legislative provisions could have been “better tailored” to preserve the financial viability of workplace benefit plans.

Having found that section 25.1 of the Code was an unjustifiable violation of the Charter, the HRTO held that the section was not available to the School Board as a defence and that Mr. Talos’ original application could proceed on its merits.

The HRTO expressly noted that its decision does not address long term disability insurance, pension plans and superannuation funds.

Conclusion

As at the date of this Communiqué, the government has not publicly responded to the decision. It, therefore, remains to be seen if judicial review of the decision will be sought or if the Code will be amended.

Provisions that allow for the termination of an employee’s benefit coverage at 65 are common, if not standard, in plans offered by Canadian employers. As it stands now, as a result of the decision of the HRTO, Ontario employers will no longer be able to rely on the Code as a blanket defence for such provisions in group health, dental and life insurance plans.