A recent decision of the Human Rights Tribunal of Ontario (the
"Tribunal") challenges the ability of employers to treat
employees over age 65 differently with respect to the provision of
benefits. The Employment Standards Act, 20001
("ESA") currently permits differentiation in employee
benefit plans with respect to persons age 65 years and older. In
Talos v Grand Erie District School Board,2 the
applicant alleged that such age discrimination is contrary to the
Ontario Human Rights Code3 (the
George Talos ("Mr. Talos"), a teacher for the Grand Erie
District School Board (the "School Board"), filed a claim
with the Tribunal alleging that his employer's benefits plan is
discriminatory. Under the School Board's plan, once an employee
reaches age 65 they are no longer entitled to benefits. Mr. Talos
alleged that such differential treatment based on age is contrary
to the Code.
In this interim decision, the Tribunal considered whether Mr.
Talos' claim should be dismissed on the basis that it failed to
disclose a reasonable prospect of success, as a result of s.25(2.1)
of the Code. Under s. 25(2.1), "The right...to equal treatment
with respect to employment without discrimination because of age is
not infringed by an employee benefit, pension, superannuation or
group insurance plan or fund that complies with the ESA and the
regulations thereunder." Under s. 44(1) of the ESA, employers
are prohibited from providing benefit plans that treat employees
differently based on age. However, in section 1(1) of the
Regulation on Benefit Plans,4 "age"
is defined as persons older than 18 and younger than 65 for the
purposes of Part XIII (Benefit Plans) of the ESA.
The combined effect of the Code, the ESA and the regulations
thereto, is that employers are permitted to provide benefit plans
that differentiate between employees on the basis of age, with
respect to employees who are under age 18 or over age 65.
Accordingly, plans like the School Board's, which exclude
persons over 65, comply with the ESA and do not violate the
Mr. Talos took the position that s. 25(2.1) of the Code does not
bar his discrimination claim, because:
s.44 of the ESA should be interpreted as only allowing
differentiation for bona fide and legitimate reasons;
Where a benefit plan is provided pursuant to a collective
agreement (as in this case), the plan can only differentiate on the
basis of age if the collective agreement clearly and unambiguously
provides for such differentiation.
The Tribunal rejected both arguments, and found that a plain
reading of the legislation makes it clear that the Code does not
prohibit discrimination in benefit plans with respect to employees
who are over the age of 65.
However, Mr. Talos was permitted to proceed with a challenge to the
constitutionality of s.25(2.1) of the Code. More specifically, he
has alleged that this section of the Code contravenes his right to
equal treatment under the law without discrimination on the basis
of age, pursuant to s. 15 of the Canadian Charter of Rights and
Freedoms (the "Charter"). In order to be successful
in his Charter challenge, Mr. Talos must meet the following three
part test set out by the Supreme Court of Canada in Law v
The law imposes differential treatment between the claimant and
others, in purpose or effect;
The differential treatment is on an enumerated or analogous
ground of discrimination; and
The law in question has a purpose or effect that is
Even if this test is satisfied, s.25(2.1) will not be declared
unconstitutional if it is found to be a reasonable limit on Charter
rights, which can be justified in a free and democratic society,
pursuant to the test developed in R. v.
Mr. Talos' Charter challenge has not yet proceeded to a
hearing. Employers should watch for the outcome of this case
(assuming it is not settled at mediation prior to the hearing), as
it may have significant implications on employee benefit plans for
all Ontario employers.
1Employment Standards Act, 2000, SO 2000,
2 2013 HRTO 1949.
3Human Rights Code, RSO 1990, Chapter
4 ON Reg 286/01.
5  1 SCR 497 at para 88.
6 1986] 1 SCR 103.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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