While not required by law, extended health benefits are a fairly common benefit provided by employers to their employees. Group health benefits typically include health and dental coverage, prescription drug, and life insurance. However, not all policies are created, or delivered, equally.
In 2006, the Ontario Human Rights Code (“Code”) was amended to prohibit mandatory retirement for employees at age 65. However, section 25(2.1) was added to the Code, which permitted employers to cut off certain group health benefits for employees at age 65, including health and life insurance.
Discrimination in employment occurs when an employee is subjected to differential or adverse treatment on account of a prohibited ground such as age, race, sexual identity, or disability. Employers have a duty to provide a discrimination-free environment and to respond to complaints of discrimination by their employees.
Sometimes, as was raised in the case of Talos v. Grand Erie District School Board, 2018 HRTO 680, an employer policy that applies to all employees may negatively impact one group of employees as compared to others. The issue in Talos was whether the employer’s group health benefits plan, which cut off health and dental benefits to employees such as Mr. Talos when they turn 65, was discrimination based on age. Mr. Talos argued that the policy was discriminatory and the respondent, Grand Erie District School Board, argued that the Code permitted it to make this distinction based on age.
This interim decision, then, addressed the constitutional question of whether section 25(2.1) of the Code – which allowed employers to provide different benefits to employees based on age – violated the equality rights guarantee of section 15 of the Canadian Charter of Rights and Freedoms. The Human Rights Tribunal of Ontario decided that, indeed, section 25(2.1) of the Code, when read together with the provisions of the Employment Standards Act, 2000 (“ESA”), was unconstitutional by violating the equality rights of section 15 of the Charter.
In its conclusion, the Tribunal held:
 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.
 The actuarial evidence presented in this matter made it clear that there are reasonable ways to protect older workers from discrimination in relation to workplace benefits, while protecting employers from the expense of unduly costly healthcare benefits and life insurance plans.
The parties ultimately settled the matter, and this decision provides a landmark precedent protecting older workers from discrimination in employment based solely on their age. The Ontario Human Rights Code is considered quasi-constitutional legislation in Ontario and aims to protect the dignity and inherent value of all of us, in employment and other areas of life.
If you feel you have been discriminated against or want to ensure, as an employer, that you are meeting all of your duties and responsibilities to provide a discrimination-free work environment, you are welcome to contact one of our experienced human rights lawyers.