Benefits Cut at Age 65 Violates Charter Rights: Tribunal

An employer’s ability to legally cut off group health, dental and life insurance benefits for employees once they reach the age of 65 has been found to be open to challenge as amounting to discrimination. The exception which permits cut-off at age 65 has been determined to violate the Canadian Charter of Rights and Freedoms, according to a recent landmark decision by the Human Rights Tribunal of Ontario. As such, the Tribunal will refuse to continue applying the exception, opening the door for employees to challenge the discontinuance of benefits coverage at age 65 as a form of age discrimination.

“This decision fundamentally changes the way in which the Human Rights Tribunal of Ontario had previously dealt with elimination of an employee’s benefits once an employee turned 65 years of age and continued working,” said Chantel Goldsmith, employment lawyer and Partner at Samfiru Tumarkin LLP.

Benefits & Age Discrimination: Talos v. Grand Erie District School Board

In Talos v. Grand Erie District School Board, secondary school teacher Wayne Talos was seeking $160,000 for loss of benefits and compensation for injury to his dignity, feelings and self-respect after his health, dental and life insurance benefits were terminated by Grand Erie District School Board when he reached age 65, though he continued to work on a full time basis. Talos argued successfully before the Tribunal that an exception in the Human Rights Code that permits employers the discretion to terminate benefits for workers over age 65 infringed his equality rights, and was unconstitutional.

Other Links

• The Increasing Cost of Terminating Older Employees
• Harassment and Discrimination in the Workplace

The school board suggested that Talos suffered no disadvantage because of the “generous” nature of his pension, and the fact that he benefited from being a member of a union – an argument that was rejected by Tribunal Associate Chair Yola Grant.

“I find that these considerations are irrelevant to determining whether Mr. Talos’ equality right in employment as guaranteed by the Charter was infringed,” Grant wrote in her May 18, 2018 decision.

Impact on Ontario Employers and Employees

As a consequence of this decision, provincially-regulated employees in Ontario, whom have had their further benefits of employment eliminated once they reached the age of 65, now have an avenue for pursuing a claim of age discrimination by making application to the Human Rights Tribunal of Ontario for a breach of their human rights, something which until now has been blocked by the exception which has effectively been struck down by the Tribunal.  Such employees may now be able to seek damages for the loss of certain benefits, along with an award for damages to their dignity and self-respect caused by the age-related loss of such benefits.

“Following this decision, if an Ontario provincially regulated employer terminates an employee’s benefits once they hit the age of 65, they risk a Human Rights Code application being brought against it by the employee for age discrimination,” noted Goldsmith, who also cautioned: “This decision will likely be appealed, and there is a potential that this decision could be overturned.”