As of December 2006, the Ontario Human Rights Code was amended
to abolish mandatory retirement. However, the provincial government
intentionally did not make corresponding revisions to the
Employment Standards Act or the Workplace Safety and Insurance Act.
As a result, the law prohibits employer-initiated termination of
employment because an employee has reached the age of 65. Voluntary
retirement remains acceptable and common. However, employees who
work past age 65 are not covered for work-related injuries and need
not be covered by group benefit plans. The maximum period for which
loss of earnings benefits will be paid under the workers'
compensation system is two years after the date of injury if the
employee was age 63 or older on the date of injury. While some
employers have arranged for benefit plans to cover employees over
age 65, given the increased premium costs, this can lead to a
decrease in benefit coverage for all employees or other types of
trade-offs. In addition, some unionized employers have been
required to provide group health benefits to employees over age 65
due to the wording of a collective agreement – typically a
benefits clause which describes the benefits for all members of the
It was foreseeable that this hybrid status of a worker over age
65 – legally protected from mandatory
retirement but not legally protected to receive
continued benefits – would lead to litigation. Such an
employee would face difficulty succeeding with a complaint under
the Employment Standards Act, Human Rights Code or Workplace Safety
and Insurance Act since these provincial laws all permit this
The Human Rights Tribunal of Ontario (HRTO) is currently hearing
such a case. The employee is a unionized teacher who is
representing himself. His union cannot bring forward a grievance
because it has reached an agreement with the school board in
exchange for lump sum payments to teachers over age 65. Nor is the
union appearing at the HRTO proceedings. So far, there have been a
number of Interim Decisions and Case Assessment Directions issued
in the case and the teacher has been unsuccessful in alleging
unlawful age discrimination. The final argument, which continues to
proceed through the HRTO process, is whether the Human Rights Code
of Ontario contravenes the equality rights provisions of the
Canadian Charter of Rights and Freedoms, a significant legal
challenge for a lone, unrepresented employee.
We will be following this important case as it continues to
Dentons is a global firm driven to provide you with the
competitive edge in an increasingly complex and interconnected
marketplace. We were formed by the March 2013 combination of
international law firm Salans LLP, Canadian law firm Fraser Milner
Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly
regarded law firms. Each built its outstanding reputation and
valued clientele by responding to the local, regional and national
needs of a broad spectrum of clients of all sizes –
individuals; entrepreneurs; small businesses and start-ups; local,
regional and national governments and government agencies; and
mid-sized and larger private and public corporations, including
international and global entities.
Now clients benefit from more than 2,500 lawyers and
professionals in 79 locations in 52 countries across Africa, Asia
Pacific, Canada, Central Asia, Europe, the Middle East, Russia and
the CIS, the UK and the US who are committed to challenging the
status quo to offer creative, actionable business and legal
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. Specific Questions relating to
this article should be addressed directly to the author.
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.
On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
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.
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).