• In Talos v Grand Erie District School Board, 2018 HRTO 680 (“Talos”), the Ontario Human Rights Tribunal (the “Tribunal”), ruled Section 25(2.1) of the Human Rights Code (the “Code”) breached the Canadian Charter of Rights and Freedoms (the “Charter”). Section 25(2.1) of the Code effectively allows employee benefit coverage to terminate at age 65 (even though the employee may continue in employment) and as such permits discrimination on the basis of age.

  • As a result, Section 25(2.1) of the Code was not available to the School Board as a defence against Mr. Talos’ discrimination claim under the Code (which claim will now proceed).

Key Facts:

  • The Grand Erie District School Board (the “School Board”) terminated Mr. Talos’ health and welfare benefits at age 65, in accordance with the benefit plan terms and the collective agreement, notwithstanding that he continued in full-time employment after age 65. Mr. Talos claimed that he was discriminated against on the basis of age, contrary to the Code.
  • In an interim decision, the Tribunal determined that Section 25(2.1) of the Code was a complete defence against the applicant’s claim of age discrimination
  • Mr. Talos subsequently filed an application arguing that Section 25(2.1) of the Code contravened Section 15(1) of the Charter, which in part guarantees the right to equal benefit of the law without discrimination, including on the basis of age.
  • The application was limited to the termination of group health, dental and life insurance plans.
  • The School Board argued that Mr. Talos had suffered no disadvantage as a result of his generous pension and his union status, and further that his transition to government benefits at 65 adequately substituted for the group benefits which had been terminated.

Key Findings:

  • Section 25(2.1) of the Code was found to be contrary to the Charter. It allows for age based discrimination, and could not be saved by Section 1 of the Charter because the impugned provision does not minimally impair the rights of older workers but rather disproportionately impacts their rights relative to the School Board’s stated objective of maintaining the financial viability of benefit plans.
  • The Tribunal found that the financial viability of health, dental and life insurance workplace benefits can be achieved without making employees age 65 and older vulnerable to the loss of employment benefits without recourse to a human rights claim.

Impact and Action

  • Although the Talos decision is a single decision of the Tribunal and therefore not yet “law”, the case indicates a shift in thinking, which suggests further challenges to such legislative provisions will be forthcoming. We note that the British Columbia Human Rights Tribunal has similarly denied an application to dismiss a complaint alleging that a provision of a collective agreement mandating termination of health and welfare benefits for active employees at age 65 was discriminatory.
  • We will continue to monitor developments in Talos and in the law surrounding age discrimination in benefit plans more generally.