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HRTO: Terminating benefit plans for employees 65 and over is unconstitutional

benefit plansIn a very recent decision, the Ontario Human Rights Tribunal (“HRTO”) ruled that it was unconstitutional for an employer to terminate the benefit plans of an employee who turned 65.

Talos v Grand Erie District School Board[1] involved an employee whose extended health, dental and life insurance benefits were terminated by his employer, Grand Erie District School Board, when he turned age 65, although he continued to work on a full-time basis. After the termination of his benefit plans, Mr. Talos brought an application alleging discrimination on the basis of age. The issue was whether the exception contained in s. 25(2.1) of the Human Rights Code permitting the termination of employee benefits at age 65 violated Mr. Talos’ equality rights under the Canadian Charter of Rights and Freedoms. The HRTO held that s. 25(2.1) of the Code violated the Charter and was unconstitutional.

The HRTO found that employees who work after age 65 provide the same labour as they did when they were 64 and would normally be guaranteed equal compensation, including access to benefits. Therefore, s. 25(2.1) of the Code created a benefit differential that is only explained by the age of the employee, in violation of the Charter. The HRTO also concluded that older workers are deprived of the supports available to their younger co-workers to maintain their fitness for work. This is because, without healthcare benefits, an injured or ill worker who is 65 or over could be forced to retire since he or she cannot afford the healthcare supports that would assist with her day to day health maintenance so that she is fit to remain at work, with or without accommodated duties.

The HRTO agreed that maintaining the financial viability of workplace group benefit plans is a pressing and substantial objective. However, the blanket denial of protection in s. 25(2.1) of the Code is too intrusive and the Legislature could have devised a less intrusive means to achieve the objective, such as requiring the exclusion or diminishment of benefits for workers 65 and older to be reasonable or justified on an actuarial basis.


[1]   Talos v Grand Erie District School Board, 2018 HRTO 680.

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De Bousquet PC Barristers and Solicitors

Civil Litigation Lawyers at De Bousquet PC Barristers and Solicitors
De Bousquet law offers experienced counsel and representation in multiple aspects of employment law, labour relations, commercial law and civil litigation. Jean-Alexandre De Bousquet, founder of the firm, interned for the Canadian Centre for International Justice, worked for an Ottawa law firm and pursued a career with the Attorney General of Ontario. In 2014, Jean-Alexandre was named one of Ontario's "leading experts" in human rights law by Legal Action Magazine. Jean-Alexandre handles cases related to wrongful dismissal, workplace discrimination, breach of contract, fraud and commercial disputes. Jean-Alexandre is fully fluent in French and English and represents clients before courts and tribunals using both official languages.Before the practice of law, Jean-Alexandre was a journalist at the CBC for 3 years. Other notable achievements include employment with the Canada Research Chair on Native Peoples and Legal Diversity, the Canadian Research Chair on Metis Identity and the Urban League, a U.S. civil rights organization. Jean-Alexandre has also published articles in prominent academic journals and presented papers at international conferences in Canada and the U.S.Read more here
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