The number of workers over the age of 65 has risen significantly
in recent years. The increasing number of older employees who
are choosing to remain in the workplace, combined with the (near)
elimination of mandatory retirement, has raised many considerations
that employers have not previously addressed. One such
consideration is the termination of benefits after an employee
reaches the age of 65. While most employers routinely terminate
benefits at age 65, the changing workforce demographic has created
a demand for benefits coverage for older workers. Unfortunately, it
is difficult to provide benefits to employees past the age of 65
because insurers either will not provide the coverage, or will only
do so at a cost that is unacceptable to the employer. This has
created conflict between some employers and employees, and has led
to legal challenges.
In Ontario, the Human Rights Tribunal ruled in Kartna v
Toronto (City),  OHRTD No. 387 that the termination of
long-term disability benefits for workers over the age of 65 does
not infringe the Ontario Human Rights Code (the "Code").
In that case, a unionized employee filed a complaint alleging that
the termination of his LTD benefits when he turned 65 was
discriminatory on the basis of age. The Tribunal upheld prior case
law which established that under the Code and the Ontario
Employment Standards Act ("ESA"), differential treatment
on the basis of age in respect of group insurance is permitted if
the person is over 65. This is because Section 25(2.1) of the Code
provides that the right to equal treatment is not infringed by a
group insurance plan that complies with the ESA, and the ESA only
prohibits discrimination in respect of a benefit plan on the basis
of age if the person's age is more than 18 years but less than
65 years. Therefore, the ESA and the Code do not prohibit
discrimination in respect of a benefit plan on the basis of age if
the person is 65 years of age or older.
Other provinces in Canada have similar exceptions in their human
rights legislation. For example, Section 6(g) of the Nova Scotia
Human Rights Act provides that the prohibition on discrimination in
Section 5(1) does not apply to "prevent, on account of age,
the operation of a bona fide pension plan or the terms or
conditions of a bona fide group or employee insurance plan".
While these provisions provide some protections to employers,
it is likely that employees will continue their efforts to secure
benefits after the age of 65. Moreover, there is some question of
the constitutionality of the exemptions in human rights
legislation. For example, in Ontario, the question of whether the
exemption violates the Canadian Charter of Rights and Freedoms is
currently before the Human Rights Tribunal in Talos v Grand
Erie District School Board. This issue is likely to evolve
significantly in the coming years and employers would be well
advised to stay abreast of changes in this area of the law.
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.
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