Ontario Human Rights Tribunal Declares Termination of Employee Benefits at Age 65 to be Discriminatory

In Talos v. Grand Erie District School Board, [2018] O.H.R.T.D. No. 525, the Ontario Human Rights Tribunal recently ruled that an employer’s ability to legally terminate group benefits for employees once they reach the age of 65 amounts to illegal discrimination. The Ontario legislation, which allows for age discrimination in benefit plans by simply carving out workers aged 65 and older, was considered unconstitutional as it violates the equality right granted under the Canadian Charter of Rights and Freedoms.

This case dealt with group health, dental and life insurance benefits. Disability was employee paid and therefore not considered in the complaint. It was also demonstrated at trial that plan sustainability was assured notwithstanding the supplying of benefits to those working past the age of 65. Only 3% of the workforce was over 65 and the government sponsored drug plans are integrated at this age.

The Ontario Human Rights tribunal does not have the authority to generally invalidate the Ontario legislation; however, the rationale of this case could successfully be used as basis for complaints from other plan members. Other Canadian jurisdictions that also allow for age discrimination in benefits plans may be subject to similar constitutional challenges. Nevertheless, when based on actuarial principals and plan viability, as opposed to strict age based differentiation, rules allowing for age limitation could be considered acceptable under the Canadian Charter given the minimal impairment principle. This means that the objective of a given piece of legislation must be achieved with minimal impact on a protected right.

The Talos decision was not appealed and the parties reached a settlement in 2019 for an undisclosed amount payable as indemnification to the claimant.

A more recent British Columbia Human Rights Tribunal (Barker v. Molson Coors Breweries [2019] B.C.HR.T.D. No. 192) considered similar issues, and also addressed the provision of disability benefits for workers after age 65. The tribunal found that an age-based carve out of benefits in the Molson Coors plan was in line with British Columbia human rights legislation as benefit reductions at age 65 passed the Supreme Court of Canada test that the plan was “… a bona fide insurance plan… adopted in good faith and not for purpose of defeating protected rights.”  The tribunal did not have the jurisdiction to the address constitutional validity of the argument, and expressed reservations about whether the arguments and decision could withstand a constitutional challenge.