Canada: Human Rights Tribunal of Ontario finds Human Rights Code section allowing employers to exclude employees over 65 years of age from certain benefits unconstitutional

Mr. Talos was a secondary school teacher who continued to work past 65 years of age. In accordance with the collective agreement between the school board and Mr. Talos’ union, Mr. Talos’ extended health, dental, and life insurance benefits were all terminated when he turned 65, although he continued to work for the school board on a full-time basis. Mr. Talos filed an application with the Tribunal alleging the school board had discriminated against him on the basis of age.

Section 25(2.1) of the Code, when read together with section 44 of the Employment Standards Act, 2000 (the “ESA”) and O. Reg. 286/01 under the ESA, generally allows employers to terminate benefits for workers over age 65. Accordingly, the school board took the position that section 25(2.1) constituted a complete defence to Mr. Talos’ allegations of discrimination. In an earlier interim decision, the Tribunal agreed with the school board and held that Mr. Talos’ claim would have no reasonable prospect of success unless section 25(2.1) of the Code was held to be unconstitutional.

Mr. Talos argued that section 25(2.1) of the Code, when read in conjunction with the relevant ESA section and regulation, was unconstitutional as it was contrary to the Canadian Charter of Rights and Freedoms (the “Charter”). A number of unions and associations, as well as the Ontario Human Rights Commission, intervened in Mr. Talos’ favour. The Attorney General of Ontario intervened in favour of the school board. Several experts provided actuarial evidence justifying the exclusion of employees aged 65 or older from benefit plans, as well as evidence of prevailing societal attitudes with respect to these employees.

The Tribunal held that section 25(2.1) of the Code, when read together with section 44 of the ESA and O. Reg. 286/01, is unconstitutional as it violates section 15 of the Charter; further, it is not saved under section 1 of the Charter.

The Tribunal found that a legislative provision that prevents workers age 65 and older from being able to challenge any reduction or elimination of access to workplace benefits as age discrimination is a prima facie violation of section 15(1) of the Charter. Neither the length of the employee’s career, nor his membership in a union, were relevant considerations. In contrast to earlier arbitral jurisprudence, the Tribunal considered it irrelevant that Mr. Talos’ employment was governed by a collective agreement.

The Tribunal held that the financial viability of workplace benefits plans could be achieved without making workers aged 65 and older vulnerable to the loss of employment benefits without recourse to a claim under the Code. The Tribunal ultimately determined that the school board could not rely on section 25(2.1) of the Code as a defence to Mr. Talos’ application.

It is unclear whether the Tribunal will choose to take a similar position in subsequent cases, or take a different approach by distinguishing subsequent human rights applications on their facts. The Tribunal’s decision in Talos is also likely to be challenged. The Tribunal’s decision in Talos dealt only with access to group health, dental, and life insurance benefit plans. Talos did not address long-term disability insurance, pension plans, and superannuation funds.