Will you still need me (or at least not cut me off extended health benefits) when I’m... 65?

By Carmela Allevato

A decision of the Ontario Human Rights Tribunal issued on May 18, 2018, available here, has thrown into question the constitutional validity of provisions in human rights codes that allow denial of workplace benefits to workers over 65 because of their age.

Human rights codes across Canada, including BC, prohibit discrimination in terms and conditions of employment based on age (unless there is a bona fide occupational requirement to justify the discrimination). However, in the area of employee benefit plans or retirement or pension plans, the legislation allows discrimination based specific grounds including age. When it comes to these conditions of employment the law deems there to be a bona fide occupational requirement to justify the discrimination.

Mandatory retirement has been abolished in BC and the rest of Canada within the past decade. However, vestiges of statutorily approved age-based discrimination remain on the books and are very much alive in workplaces. Typically, workplace group health insurance benefits end at age 65. This has been based on the notion that benefits are very costly for this age group. Jurisprudence developed by human rights tribunals and labour arbitrators have upheld the constitutional validity of these restrictions.

In departing from established jurisprudence, the Ontario tribunal made the following comments:

In the intervening years since involuntary (mandatory) retirement was eliminated in 2006, societal views of workers over age 65 have changed significantly, compensation packages have also changed, and the experience of claims and costing for a decade are particularly relevant today to the justification of age-differentiated benefits and the financial viability of workplace plans that include workers age 65 and older.          

After considering all the evidence, I conclude that the financial viability of workplace benefits plans can be achieved without making the age 65 and older group vulnerable to the loss of employment benefits without recourse to a (quasi-constitutional) human rights claim. I find that the impugned provisions do not minimally impair the rights of these older workers, as an employer is not required to demonstrate that their exclusion from employment benefits is reasonable or bona fide, or justified on an actuarial basis, or because their inclusion would cause undue hardship.

Following this decision, age-based discrimination in benefit plans will not automatically be deemed to be a bona fide occupational requirement and the justification for such discrimination will have to be shown in each case.

The decision deals only with health benefits. Other workplace benefits such as LTD that typically end at 65 will have to be addressed at another time. The decision also does not specifically deal with differentiations in benefits based on family status, gender or disability. Finally, because human rights legislation is provincial, the decision is not binding in any of the other provinces or at the federal level and it remains to be seen what the BC Human Rights tribunal will do in similar cases. Nevertheless, the significance of this decision, provided it is upheld on appeal, is clear. It provides a conceptual framework with which to challenge the statutory protection of discriminatory practices.

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