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Ontario Human Rights Tribunal Rules that Denial of Benefits after Age 65 Violates Charter Rights

In December 2006 Ontario saw the end of mandatory retirement, after it was ruled unconstitutional.  However, the provision of medical, dental, disability, insurance and other benefits to employees aged 65 and older remained at the discretion of employers. Section 25(2.1) of the Human Rights Code, in conjunction with section 44 and O. Reg. 286/01 of the Employment Standards Act, 2000, allows employers to deny benefits to workers after age 65.

In a recent landmark decision, the Human Rights Tribunal of Ontario has ruled that an employer’s denial of extended health benefits to an employee after he reached age 65 constitutes discrimination and a violation of the Canadian Charter of Rights and Freedoms.

In Talos v. Grand Erie District School Board secondary school teacher Wayne Talos brought an application against the Grand Erie District School Board, alleging discrimination on the basis that his health and life insurance benefits were terminated once he reached age 65.  He sought damages of $160,000 for loss of those benefits and general damages for injury to his dignity and feelings.  During the lengthy hearing, the Tribunal heard from various witnesses and parties who intervened, to argue that benefits plans would be cost-prohibitive if employers were forced to extend them to older employees.  The Tribunal also heard from the Applicant’s wife, who testified as to the negative impact of having Talos’ health benefits terminated while she was undergoing cancer treatment.  Unfortunately she passed away in 2016 before the hearing was complete.  

The Tribunal concluded that section 25(2.1) of the Code is unconstitutional, that benefit plans for employees past age 65 are in fact financially sustainable, and that denial of those benefits past 65 is an unfair distinction based on age.

The Tribunal has not yet ordered a remedy and encouraged the parties to mediate before returning for a hearing about the issue of damages.

Takeaway:  Provincially regulated employees in Ontario who have become disentitled to benefits at age 65 may now be able to seek damages for the loss of those benefits and for age discrimination.  It should be noted that this case speaks only to extended health and life insurance, it did not address disability insurance or pension benefits.  While there is a chance this decision could be appealed and overturned, employers should consider this new exposure in drafting and applying benefits policies.

Read the decision here.