Can unfair employment end age discrimination: Reasonable Doubt

Canadians are retiring later than ever, but many over 65 don’t have the same access to benefits as other employees


Employees in Ontario are retiring later than ever. Life expectancies have consistently risen and people now work into their 60s and 70s in order to support themselves as they live longer. For most, gone are the days of “freedom 55.”

Older employees are not, however, receiving the same benefit coverage as their younger counterparts. Many employers provide health and dental insurance coverage – prescriptions, massage and chiropractic – along with life and disability insurance benefits. These benefit plans typically stop at age 65. So, employees over age 65 who continue to work no longer have access to the same benefit coverage as their colleagues.

This age discrimination is currently legislated in Ontario. The Human Rights Code ( the Code) is meant to protect us from discrimination at work. However, the Code along with the Employment Standards Act provides that employers are legally allowed to cut off and/or modify benefits such as health and dental plans, life and disability insurance, and pension plans for employees over the age of 65. Without private coverage, Canadians over the age of 65 can expect to spend $5,391 out-of-pocket a year on medical costs, which are on the rise, according to the 2014 BMO Wealth Institute Report.

A recent landmark ruling provides some hope of change for this unfair employment situation. In that case, the applicant, Wayne Talos, was an employee over 65 who worked for the Grand Erie District School Board. Mr. Talos’s wife was living with cancer, requiring many pharmaceuticals as part of her treatment. She was covered under Mr. Talos’s drug plan at work, until that was cut off when he turned 65.

Mr. Talos successfully challenged the section of the Code that allowed employers to treat him differently than his co-workers based on his age. In Talos v Grand Erie District School Board, the Human Rights Tribunal ruled that this section of the Code discriminates against able, qualified, and willing older workers. It also ruled that this section in the legislation was based on faulty information.

Back when the Ontario government was making changes to the human rights legislation, it considered this issue but found it would be too costly for employers to continue benefits for employees beyond age 65. This time around, the Tribunal looked at all of the evidence and disagreed. It decided that the evidence proves it is financially viable for most employers to continue employee benefits until the age of 79.

While the ruling does not change the legislation (only the government can do that), it is a complete game-changer for the many older working employees who rely on their employers for benefits. Older workers now have an opening to claim discrimination if their employers cut off benefits at age 65.

With this new decision on the books, employees should review all of their benefit plans and talk to their employers about continuing benefits past the age of 65. If an employer refuses, the employee could bring a human rights claim claiming discrimination on the basis of age. After the Talos decision, there is a good chance the employee will be successful in that claim.

Nicole Simes is a lawyer at MacLeod Law Firm, practising in the areas of Employment and Human Rights Law. Reasonable Doubt appears on Mondays.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

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