Employees over 65 can’t be denied health benefits | PLUS: Bill 66 in Second Reading 2019-08-30T14:25:46+00:00

Following changes to the Human Rights Code in 2006, an employer cannot simply dismiss an employee when he or she turns the age of 65, despite it being the long-established “retirement age”. However, the same legislative changes that enabled that amendment, enacted in 2005, allowed employers to terminate an employee’s participation in various benefits plans at the same age. Recently, a high-school teacher, Wayne Talos, challenged this seemingly arbitrary rule before the Human Rights Tribunal of Ontario (“HRTO”).

When Mr. Talos turned 65, the high school where he worked terminated his access to health, dental and life insurance benefits. He brought an application before the HRTO pleading discrimination based on age and that the provision to allow this was unconstitutional. The HRTO addressed this in an interim decision.

The HRTO had little difficulty recognizing that the provision was, on its face, discriminatory. However, it gave serious consideration to whether the discriminatory conduct could be justified for a legitimate purpose. The School Board, as well as other intervenors, including the Ontario Attorney General, submitted the previously accepted argument that to allow employees over the age of 65 to continue to participate in these plans would be cost-prohibitive to benefit providers, and financially unsustainable. However, the HRTO disagreed. Instead, it relied on expert evidence previously unavailable and therefore not considered in similar decisions, that providing these benefits to individuals over the age of 65 would not undermine the financial viability of providers.

As a result, the HRTO determined the provision was discriminatory and unconstitutional, and struck it down for the purposes of the hearing of Mr. Talos’ full application.

While the decision is exciting for a number of reasons, its practical application is limited. First, it is an interim decision made by a tribunal and not the courts. This means, amongst other things, that the decision is not binding on other matters. Further, the HRTO expressly stated that the “decision does not address long term disability insurance, pension plans and superannuation funds”, but only group health, dental and life insurance plans. It’s scope, therefore, is also limited. However, this decision is an important indication of the direction that the law may be headed and is worth noting for that reason. In light of this, employers should be extremely careful when implementing similar plans.

If you are in this situation or have any questions, please contact any of the lawyers at Robinson Heeney to help build you a sustainable strategy.

Update on Bill 66: Restoring Ontario’s Competitiveness Act, 2019

Proposed on December 6, 2018, Bill 66, Restoring Ontario’s Competitiveness Act, 2019, sets out changes to the Employment Standards Act, including eliminating the requirement for employers to apply for Ministry of Labour approval for excess weekly hours of work and overtime averaging, and eliminating the requirement to post an ESA poster in the workplace. The bill is currently in its second reading debate, and has yet to be passed. We will continue to provide updates as this progresses.