The Human Rights Tribunal of Ontario recently released its
decision in Kartna v. Toronto
(City), dismissing an application that the
termination of long-term disability (LTD) benefits at the age of 65
was discriminatory on the basis of age.
The Tribunal dismissed the application following a summary
hearing on the basis that the application had no reasonable
prospect of success.
The case involved an Applicant who had been receiving LTD
benefits since April 2011. Consistent with the terms of the LTD
plan, those benefits were terminated in September 2013 when the
Applicant reached the age of 65.
The Applicant argued that a plan cutting off LTD benefits at age
65 had the effect of forcing an employee into retirement. Further,
as mandatory retirement was discriminatory, the provisions of the
ESA (referenced below) reflected an outdated and inequitable
approach to retirement.
The Tribunal found that the differential treatment complained of
by the Applicant was permitted by a plain reading of the Human
Rights Code (the Code), the Employment Standards Act,
2000 (the "ESA") and Regulation 286/01
under the ESA (the ESA Regulation).
Specifically, Section 25(2.1) of the Code provides an exemption
for differential treatment on the basis of age in group insurance
contracts, provided that such treatment is not inconsistent with
the provisions of the ESA. Although section 44(1) of the ESA
similarly prohibits employers from providing benefits plans to
employees on a differential basis because of age, the ESA
Regulation defines "age" for these purposes as being
between the ages of 18 and 64. Taken together, and as the Tribunal
confirmed, these provisions limit the ESA's prohibition on
differential treatment on the basis of age in respect of group
insurance contracts (including LTD plans) such that it does not
apply to persons aged 65 and over.
While an employer may certainly choose to extend benefits to
employees who are 65 and over, confirmation by the Tribunal that a
decision not to do so does not contravene the Code
provides a useful precedent for employers, particularly in light of
Canada's increasingly aging workforce.
Although some have attempted to argue
that the legislative provisions discussed herein contravene the
equality rights protected by section 15 of the Charter, it
appears that this question has yet to be dealt with by the
Tribunal. Until such time, we expect that the Tribunal will
continue to interpret these Code and ESA provisions in the manner
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).