Canadian HR Reporter

CANADIAN HR REPORTER JULY 2018 NEWS 3 No benefits past 65? at's discrimination Ontario decision comes long after restrictions around mandatory retirement BY SARAH DOBSON IN 2006, Ontario's Human Rights Code was changed to protect em- ployees against discrimination on the basis of their age, such as hiring, promotion, training or termination — including man- datory retirement. But, for some reason, employee benefits didn't warrant the same protection. Fast-forward to 2018 when the Human Rights Tribunal of Ontar- io (HRTO) decided that code, and related provisions in the Employ- ment Standards Act, amounted to age discrimination and violated the Canadian Charter of Rights and Freedoms. "It's a very big decision, that we've waited for for a long time," said Anneli Legault, a partner at Dentons in Toronto. "It was an inevitable challenge. e government almost set it up to be challenged at some point," she said. "Because they were so honest, they actually said, when they passed the mandatory re- tirement abolishment, they were worried about the financial vi- ability of benefit plans. So they were allowed to not give benefits to everyone." Background e case concerned Wayne Talos, a teacher at the Grand Erie Dis- trict School Board in Brantford, Ont., whose extended health, dental and life insurance benefits ended when he turned 65, though he was still working full-time. Talos alleged the exception in the Human Rights Code in- fringed his equality rights and was unconstitutional, and he sought monetary compensation of $160,000 for lost benefits and compensation for injury to dig- nity, feelings and self-respect. In its decision, the tribunal looked extensively at Bill 211, the "Act to amend the Human Rights Code and certain other acts to end mandatory retire- ment" which was intended to end the upper limit on age when it came to involuntary retire- ment, but "preserved the ability to employers to provide differ- ential benefits and pension plan contributions for workers 65 and older in a bid to maintain the fi- nancial viability of those plans." This "carve-out" was ques- tioned by HRTO associate chair Yola Grant in her May 18 decision: "I find that the policy choice to carve out workers age 65 and older relied on the insurance industry's expectation of costs increases, an expectation that was not empirically supported in 2005. This policy choice by the legislature ignored 'indepen- dent' research that indicated little change to the cost of benefit plans in Manitoba and Quebec post- mandatory retirement." Bill 211's purpose to maintain the financial viability of various benefits and pension plans was not supported by any empirical evidence concerning the propor- tion of workers who would likely remain active after age 65, said Grant, or whether maintenance of these plans would be cost-pro- hibitive, or age differentiation in benefits was necessary to ensure the viability of the group insur- ance plans. And since then, more credible actuarial data shows there is no "steeper curve" in costs for work- ers 65 and older, and "the policy choice to exclude workers age 65 and older from equal protection in employment benefits appears arbitrary and not 'within a reason- able range of choices' to which this tribunal should accord deference," said Grant. ere are various ways to man- age plan costs should increases become unsustainable, she said, so "the legislature could have devised a less intrusive means to meet the objective of maintaining the financial viability of workplace group benefit plans." "e age 65 and older group need not be made vulnerable to the loss of employment benefits without recourse to a (quasi-con- stitutional) human rights claim in order to ensure the financial via- bility of workplace benefits plans. e government's age limit of 65 for protection from discrimina- tion in the provision of benefit and insurance plans appears un- acceptable given the cogent evi- dence to the contrary that there is no close link to costs and age," said Grant. "An employer is not required to demonstrate that their exclusion from employment benefits is rea- sonable or bona fide, or justified on an actuarial basis, or because their inclusion would cause undue hardship." Concerns about costs Back in 2005, there was an as- sumption it would potentially be too expensive to provide full ben- efits to workers 65 and older, said Bruce Ryder, an associate profes- sor and academic director of the anti-discrimination intensive pro- gram at Osgoode Hall Law School in Toronto. But this recent decision focused on the fact that "the regulations and the Employment Standards MORE > pg. 10

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