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HRTO Finds Exemptions in Human Rights Code Unconstitutional
Workwise Newsletter

Recently, the Human Rights Tribunal of Ontario (the “HRTO”) released a significant decision regarding an employer’s discretion to terminate extended health, dental and life insurance benefits for employees that reach the age of 65, but continue to work on a full time basis. 

In Talos v. Grand Erie District School Board, 2018 HRTO 680, the HRTO concluded that exceptions in the Ontario Human Rights Code that give employers the discretion to terminate benefits for workers over age 65 infringed equality rights and are unconstitutional. It should be noted that this case was limited to group health, dental and life insurance benefit plans and excluded long-term disability insurance, superannuation and pension plans from consideration in the constitutional challenge.

Section 25(2.1) of the Ontario Human Rights Code1, in conjunction with the Ontario Employment Standards Act, 2000 and its Regulations, creates a distinction between workers under the age of 65 and those who are 65 and older who perform the same work: those over 65 are vulnerable to losing a portion of their remuneration package and not protected under the Ontario Human Rights Code.2

The HRTO found that Mr. Talos, a secondary school teacher, experienced disadvantage on the basis of age and that his right under the Canadian Charter of Rights and Freedoms (“Charter”)3 had been infringed as a result of the impact of the exception in the Ontario Human Rights Code and that the infringement of his Charter rights was not justified. Specifically, after considering all of the evidence, the HRTO concluded that the government’s age limit of 65 for protection from discrimination in the provision of benefit and insurance plans appeared unacceptable given the evidence that there was no close link to costs and age.4 The HRTO also found that there were other alternatives available to the government that would impair the rights of workers age 65 and older less.5

The HRTO’s conclusion in this case is different from a previous labour arbitration decision that had been decided in Ontario that had upheld the constitutionality of s. 25(2.1) of the Ontario Human Rights Code and the relevant provisions of the Ontario Employment Standards Act, 2000 and its Regulations.6 In this regard, the HTRO noted that the actuarial evidence presented in the two cases differed significantly regarding the cost associated with benefits for employees in their 60’s.7

The conclusions of this case raise questions regarding the constitutionality of parts of s. 7(2) of the Alberta Human Rights Act which provides that age discrimination is allowed in regards to “the operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan.”

Given the potential impacts of the decision, it is quite possible that judicial review of this decision will be sought. Field Law’s Labour and Employment Group will continue to monitor this case and provide you with updates on how it may impact your business.
1Human Rights Code, R.S.O. 1990, c. H.19.
2Talos v. Grand Erie District School Board, 2018 HRTO 680 (CanLII) (“Talos”), para 15.
3Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982 being Schedule B of the Canada Act 1982 (U.K.), 1982, c.11  (the “Charter”).
4Talos, supra, para 283.
5 Ibid.
6Chatham-Kent (Municipality) v. O.N.A. (O’Brien) (Re), 104 C.L.A.S. 267 (October 31, 2010), 202 L.A.C.(4th) 1
7Talos, supra, para 19.