Can Benefits be Automatically Denied to Employees Over 65?

Written on behalf of Peter McSherry

A recent Human Rights Tribunal decision will have a significant impact on the rights of older workers.

The case involved a school teacher who received health, dental and life insurance benefits from his employer, the Grand Erie District School Board. The employer then terminated these benefits once the teacher reached the age of 65.

The Ontario Human Rights Code then had a provision that allowed employers to terminate benefits for employees at age 65. The Code does prohibit adverse treatment based on age but allowed for an exception with respect to benefit plans.

An Infringement of Charter Rights?

The teacher argued that this excepting clause was contrary to the Canadian Charter of Rights and Freedoms and hence was unenforceable. The Charter protects the fundamental rights and freedoms of all Canadians at the federal level. It acts as a road guard against any provincial or federal legislation which is in violation of these basic rights.

The Human Rights Tribunal has the legal power to invoke the Charter to declare any law of Ontario to be contrary to the Charter and hence unenforceable.

Tribunal Can Enforce the Charter

This case is a good example of the Charter in action. The Tribunal determined that this provision of the Code was, in fact, contrary to the human rights protected under the Charter. That does seem odd at first reading; that the provincial Human Rights Code itself was offside when it came to human rights protections.

A Precedent?

In this case, the employee was required to demonstrate that he had a “prima facie” case that he was discriminated against. A “prima facie” case just means showing enough evidence to prove there is a viable case, and in general, is a low bar for the employee to jump over. The employer, in this case, was a school board and did not argue that the additional unexpected costs were overly expensive for it. This argument could be open for a smaller private company to make if the issue is later raised in a different matter. Ultimately, the Tribunal found in favour of the employee, saying:

With the passage of Bill 211, the Government ended the discriminatory practice of involuntary retirement. However, through the impugned provision, it permitted, in conjunction with the ESA and its Regulation, another practice to continue: unequal compensation for workers age 65 and older. It did so on the basis of “advice” from insurers, contrary to public servants’ independent studies, that pension and benefit plans would suffer because of the presumed increase in costs associated with providing coverage for ageing workers. Furthermore, the impugned provision deprived these older workers of Code protection, such that employers were not required to justify any lessening or elimination of benefits coverage.

Technically speaking, decisions of the Human Rights Tribunal is an “administrative” decision and is not binding on a subsequent Tribunal, although in the real world, these decision-makers tend to follow prior decisions.

The case will have a considerable impact on all employers in Ontario. It is a good example of how our legal system is established to protect fundamental rights, ironically even against the Government of Ontario itself and legislation specifically designed to protect human rights.

Take Away for Employees

If your employer has threatened to deny your benefits entitlement at any age, get legal advice. In this case the employee’s spouse, who was normally covered by the benefit plan, was in severe need of the benefit plan due to a medical situation. The outcome of this case was of considerable assistance to her and indeed, all comparable employees of this school board and many others throughout the province.

Get Advice and Know Your Rights

Stay up to date and understand your legal rights. Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation