The Human Rights Tribunal has released a decision[1] which will have significant impact on all employers in the Province. The consequences of this decision cannot be understated. The case reflects the significant power found within the human rights administrative process.

The Background

The case involves an assertion made by a school teacher, who continued to work beyond his 65^th birthday, that he was treated adversely due to the Board’s denial of certain medical and health benefits to him and his spouse upon his reaching age 65.[2]

The Statutes

The Human Rights Code does provide protection against adverse treatment due to age in employment without regard to the passing of age 65. However, at the time of the enactment of this amendment, the Employment Standards Act in combination with the Code’s exception,[3] allowed for differing treatment due to age 65 for employee benefits and group insurance.[4]

The essential question presented to the Tribunal for determination was whether the denial of benefits at age 65 by the operative excepting section of the Code violated the Charter’s guarantee of equality before the law[5] and if so, whether there existed a justified right to limit such right of equality in this instance.[6]

Both questions were answered in favour of the applicant.

Notably, one of the submissions to oppose the application was that the applicant enjoyed access to age related entitlements such as government benefits, pension income and also personal savings acquired over his years of active employment. This submission followed that there hence was no adverse treatment based on age. This argument failed.

As to the issue of substantive discrimination, the Tribunal found that the need for health care resources is clearly impacted by age and creates a burden on such workers.

With respect to the justification argument, no submissions were made that there would be financial hardship imposed on the school board by the need to provide such benefits.[7]

The Impact

The case presents obvious issues to employers whose workforce has employees in this category of over the age of 65 and now being denied benefits. In addition, any actions taken by the employer in anticipation of workers reaching these qualifiers will be subject to human rights remedies should actions such as termination or other adverse conduct be shown presently. This includes hiring practices. An employer clearly cannot be dissuaded from the hiring of an older worker to avoid this burden.

No remedy has been allowed in the decided case as of this date, but that issue is clearly on the near horizon.

Time to Act is Now

Every employer must take immediate legal advice to prepare for the dramatic consequences of this decision. There can be no exception. There may be affirmative actions which can be taken, such as the creation of actuarially effective post 65 benefit plans. It may be difficult to establish these plans retroactively. There may be defences available which were not argued in this instance, such as the impact of the cost of such post 65 benefit costs which had not been budgeted previously.

This case may well be judicially reviewed. These reviews are difficult to win, given the standard of deference allowed to the human rights tribunal.

Employees

If you are employee in any of the above categories, you need advice. Whether you are in the direct segment of over 65 and being denied benefits, approaching 65 and facing such an event, termination or other adverse action, or an older worker seeking employment, get advice.

Do Not Hesitate to Act

Now is the time to take immediate action, particularly for every employer. Contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] Talos v Grand Erie District School Board

[2] The applicant’s spouse was gravely ill and unemployed. She would have normally been insured had the benefits continued. She was able to replace many of the benefits, but not all, by a successful application to the Trillium Drug Program and the Exceptional Access Program. The access to government funded assistance was not relevant to the issue of standing. Apart from his spouse’s drug needs, the applicant was denied insurance coverages for travel, dental, chiropractic and similar covers.

[3] By Section 25(2.1) of the Code, s. 44(1) of the Employment Standards Act and the Regulation under the ESA 286/01

[4] On a non-actuarial basis

[5] By Section 15(1)

[6] By Section 1

[7] The Tribunal did note that if one plea to justify the exception was one of financial viability of the plan of benefits for all employees as a whole, the employer must rationalize differences in benefits based on age on an actuarial basis.