In Talos v. Grand Erie District School Board  (“Talos“), the Human Rights Tribunal of Ontario (“HRTO”) held that statutory provisions permitting employers to reduce or discontinue employees’ benefits after they reach age 65 is discriminatory and contrary to the Canadian Charter of Rights and Freedoms (“Charter “). Consequently, employers should review their benefits plans, and consider whether it may be necessary to adjust or eliminate such age-based distinctions.

Background

In 2005, the Ontario government passed legislation preventing employers from requiring employees to retire at age 65. At this time, there was a concern that the elimination of mandatory retirement might have serious consequences for the financial viability of benefits plans because older employees would more often continue to be members of those benefits plans. The government therefore passed legislation allowing employers and insurers to reduce or eliminate benefits when employees reach the age of 65.

While the legislature acted with the intention of protecting the financial viability of benefits plans, it did not review empirical evidence confirming its actions were necessary to achieve financial viability.

The provisions at issue in Talos — provisions under the Human Rights Code (“Code “) and the Employment Standards Act and its Benefit Plans Regulation — collectively permit employers to reduce or eliminate benefits provided to employees when they reach age 65 without running afoul of the Code (the “statutory exception”). The legislation also permits certain age-based differentiations under life insurance and disability plans for employees under the age of 65, if the differentiations are justified on an actuarial basis.

HRTO Complaint

In Talos, an application was filed by Mr. Talos, a teacher employed by the Grand Erie District School Board. Mr. Talos had received extended health, dental, and life insurance benefits from his employer until he reached age 65. This coverage offset the costs of his wife’s medications for arthritis and cancer.

When Mr. Talos turned 65, the School Board ended his benefits, relying on the statutory exception. Mrs. Talos was under 65 when her husband’s workplace benefits ended. As a result, she had to forego certain medications until she turned 65 and became eligible for Ontario’s publicly available health care benefits.

At the HRTO, Mr. Talos claimed that the statutory exception violated s. 15(1) of the Charter, which prohibits discrimination on the basis of age.  Mr. Talo’s allegation of discrimination was limited to the School Board’s group health, dental and life insurance benefit plans.

HRTO Decision

In a lengthy decision, the HRTO considered many fundamental issues of age discrimination. The HRTO reviewed a broad range of evidence, including expert testimony in the fields of sociology, economics, labour relations, and actuarial science. The HRTO also considered the viability of workplace benefits regimes in which coverage is extended to older workers, as well as Mr. Talos’ compensation, accumulated assets, union membership, pension entitlement, and the availability of public extended health benefits for those over 65 years old.

The HRTO found that Mr. Talos had experienced a disadvantage on the basis of age as a result of the statutory exception that permitted the elimination of his benefits when he reached the age of 65. The HRTO therefore concluded that Mr. Talos’ rights under s. 15(1) of the Charter  had been infringed.

The HRTO was therefore required to consider whether the violation was demonstrably justified in a free and democratic society under s. 1 of the Charter. The HRTO held that, although the financial viability of benefits plans was a pressing and substantial objective, the government’s decision to legislate the statutory exception was not justified because it was not necessary to preserve the financial viability of benefits plans.  For example, such benefits plans have continued to be financially viable in Manitoba and Quebec where statutes generally do not permit the reduction or elimination of benefits after an employee reaches the age of 65.

What Now?

Because the HRTO does not have the power to declare the statutory exception to be invalid, the legislation is still in effect. Nonetheless, Talos strongly suggests that the statutory exception will be the subject of further litigation, and that benefits plans that make age-based distinctions for employees after reaching the age of 65 will now be subject to serious legal scrutiny. The HRTO is unlikely to diverge from its position in Talos and can be expected to apply the same result in similar cases.

To reduce the risk of liability, employers should work with their legal counsel and benefits providers to explore ways of providing group health and dental benefits without making distinctions based on age. Certain age-based differentiations may be permissible where there is clear actuarial evidence confirming the differentiation is necessary to maintain the financial viability of the plan.

 – With thanks to Jan Nato and Shira Sasson for their assistance with this article.