Ontario Human Rights Tribunal finds employer’s failure to provide post-65 employee benefits discriminatory

In a ruling that sets up further legal battles, the Ontario Human Rights Tribunal recently decided that exemptions in the Ontario Human Rights Code (the Code) permitting employers to exclude post-65 employees from employment benefits violate the Canadian Charter of Rights and Freedoms (the Charter). If upheld by the courts, the ruling could require employers to either add employees to their benefit plans or demonstrate why it would not be practical to do so.

Background

Ontario abolished mandatory retirement in 2006. Ontario employers are allowed to decide whether they wish to provide employee benefits after age 65, because the Code permits employers to exclude or make distinctions in employee benefits for employees older than age 65 and younger than 18.

In the case Talos v. Grand Erie District School Board (Talos), the complainant was a high school teacher who challenged the termination of his group health, dental and life insurance benefits when he reached age 65. The termination of his participation in the employee-paid and union-managed long term disability program was not challenged, in part because this particular program was not funded by the employer.

The decision

The Tribunal overturned an earlier decision by an arbitrator who had upheld the constitutionality of the exclusion of employees from age discrimination protections with respect to post-65 benefits. It rejected the argument that the complainant had suffered no disadvantage because he had a generous pension and his benefits had been negotiated by a union.

The Tribunal decision found that the Code was discriminatory because it did not require employers to prove that it is impossible to provide benefits to older employees:

“the financial viability of workplace benefits plans can be achieved without making the age 65 and older group vulnerable to the loss of employment benefits … [T]he impugned provisions do not minimally impair the rights of these older workers, as an employer is not required to demonstrate that their exclusion from employment benefits is reasonable or bona fide, or justified on an actuarial basis, or because their inclusion would cause undue hardship.”

Accordingly, the Tribunal found the exclusion of post-65 employees from the Code was contrary to the Charter and the usual prohibitions on age discrimination in the Code should be applied to this situation.

Cost of post-65 benefits

The Tribunal found that the Ontario government’s decision to enact a “carve-out” in the Code was not supported by empirical evidence. The Tribunal relied in large part on the evidence provided by the actuarial expert for the complainant. That expert made the following assertions:

  1. Dental costs peak at age 40 to 49 and 60 to 64, and steadily decrease thereafter.
  2. Extended health care plan costs are highest for employees in the 50 to 64 bracket and decrease after age 65 so that costs in the age 65 to 79 bracket are similar to costs in the 40 to 49 bracket.
  3. Life insurance costs increase steadily with age, but age 65 is not significant in terms of mortality. Extending life insurance benefits for employees over age 65 would increase average plan costs, but benefit reductions could be made to keep the average cost of coverage unchanged.

The Tribunal did not accept claims that post-65 employees could potentially remain at work in order to take advantage of coverage for high-cost drugs, thereby creating a risk of “anti-selection” for the benefit plan.

The Tribunal invited the parties to decide whether they wished to engage in mediation, failing which the matter would be decided on its merits and the appropriate remedial order would be made, if required.


Comment

This particular decision applies to a particular circumstance and has been made by a Tribunal rather than a court, so it does not yet have general application. However, if the principle that the general exclusion of post-65 employee benefits from human rights legislation contravenes the Charter is upheld by the courts, employers who continue to exclude post-65 employees from all benefits could be subject to human rights complaints. In order to successfully defend against such complaints, employers would be required to demonstrate that the termination of benefits for those over age 65 is reasonable and bona fide. If employers decide that it is impossible or cost-prohibitive to defend such complaints, employers could potentially be required to provide health, dental and life insurance coverage to employees over age 65.


News & Views - July 2018 (PDF)