Older Workers & Human Rights
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Written on behalf of Peter McSherry
Grand Erie School Board before Human Rights Tribunal
A recent decision[1] of the Ontario Human Rights Tribunal has been made in a high-profile case involving the Brantford School Board. It has enormous significance to many employees in Ontario.
Background
The issue arose from the denial of insurance and other benefits to a teacher who had reached age 65. The Ontario Human Rights Code prevents adverse treatment due to age without any upper limit. At one time, the law did allow for mandatory termination of employment at age 65. When the law was amended to prevent this, it nonetheless continued to allow the employer the right to deny benefits at age 65.
Charter Rules
On the face of the two relevant statutes[2], the employer was apparently quite legally able to deny benefits as it had done. However, the Charter of Rights and Freedoms requires all laws of the Province to adhere to certain fundamental values, one of which is equality before the law.
The issue in this case is whether the Ontario statutes which allowed this adverse treatment at age 65 were in fundamental violation of this right.
The Ontario Human Rights Tribunal recently answered this question by stating “yes”.
The Charter does allow for exceptions in certain situations. That is, the Charter states that there can be a situation where the provincial law violates such an equality guaranty, yet is nonetheless appropriate. This was not such a situation. The Tribunal declared these statutes violated the Charter.
What Does This Mean?
The repercussions of this decision are enormous. This requires, generally, that employers provide the same benefits to all employees, regardless of their ages, even after the age of 65.
Perhaps more importantly, the school board in this case is not allowed to terminate the employment of such persons to avoid such obligations, nor is it allowed to terminate older workers approaching 65 for the same reason, nor to refuse to hire persons in the same situations.
Similarly if the school board, due to this decision, removed all benefits for all employees, perhaps more likely in a small work force, a human rights violation would follow.
Any Wiggle Room?
There may be arguments for an employer which were not presented in this case, one of which was further the additional costs imposed an undue burden on the employer. This issue remains uncertain at this time.
Appeals Pending?
The time clock for a review has yet to start. Undoubtedly the decision will be reviewed in a higher court. Such reviews from a human rights decision are generally difficult to win.
What should be done?
If you have been adversely treated in any of the manners set out above, get legal advice as soon as possible. Your “time clock” or limitation period will start clicking as soon as you are aware of adverse treatment. This includes not only the denial of benefits at age 65, but also termination or other adverse treatment even if you raise this issue as a topic of inquiry.
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
[2] The Ontario Human Rights Code & The Employment Standards Act
