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BREAKING NEWS: Section 25(2.1) of the Ontario Human Rights Code Unconstitutional says Tribunal! Right to Terminate Group Benefits at 65 Successfully Challenged

Practice Areas: Human Rights

Are you an employer with a benefit plan that terminates for workers who are 65 and older? If yes, you should be taking note of the Human Rights Tribunal of Ontario interim decision of Talos v Grand Erie District School Board 2018 HRTO 680.

In this case, the Tribunal considered whether section 25 (2.1) of the Human Rights Code (read in conjunction with s.44 of the Employment Standards Act, 2000) breached the Charter. Section 25 (2.1) of the Code purported to create an exemption to equal treatment with respect to employment without discrimination because of age for an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act. In other words employers could cut employees off of benefits when they turned 65 and not be concerned about a discrimination claim on the basis of age.

As a teacher Mr. Talos received group healthcare benefits and life insurance throughout his career until he turned 65. On his 65th birthday however, his birthday present was that his ability to access these benefits was no longer a right and instead could be denied completely. The School Board relied on section 25(2.1) of the Code to defend this position. The Tribunal found that this treatment did create a distinction based on age for workers age 64 and below and those aged 65 and above.

Mr. Talos challenged the exemption of section 25(2.1) of the Code on the basis that it breached section 15(1) of the Charter. In Canada all statutory provisions must comply with the Charter. The Tribunal determined that section 25(2.1) of the Code did breach the equality guarantee of the Charter by permitting lower compensation to older workers.

Once a Charter breach is established a provision can be saved or continue to apply if it is saved by section 1 of the Charter. Section 1 is the reasonable limits clause and allows a law to breach another provision of the Charter if there is a sufficient justification for the limit on the Charter right. The Tribunal found that the breach of section 15 of the Charter was not saved or permitted by section 1. The Tribunal concluded that there were less drastic measures other than a complete denial of benefits at age 65 that could be used to incorporate the objectives of section 25(2.1).  The Tribunal found that the School Board and the Attorney Generals had not provided sufficient information to justify the need for the provision.

As a result, employers should be aware that at this time section 25(2.1) of the Code has been determined to be unconstitutional and cannot be used as a defence to discrimination claims at this time. This decision is an interim decision and the merits of the case are still to be decided by either mediation or a further tribunal decision. Regardless of the outcome of the decision on the merits employers should consider the impact of this decision on their benefit plans. We will keep you up to date on any further developments on this issue as we expect the Tribunal will not have the last word on this issue!



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