For many years, even since the removal of mandatory retirement in Ontario, it has been permissible to deny benefits, pension, superannuation or group insurance plans or funds to employees over 65 due to an exception in the Ontario Human Rights Code. However, a recent decision from the Human Rights Tribunal of Ontario (Talos v Grand Erie District School Board, 2018 HRTO 680) (PDF) found that this exception is unconstitutional.


While the Ontario Human Rights Code ("Code") prohibits discrimination on the basis of age, section 25(2.1) of the Code provides an exception to a claim of discrimination on the basis of age for employee benefit, pension, superannuation or group insurance plans or funds that comply with the Employment Standards Act, 2000 ("ESA"). The Regulations to the ESA define "age" as "any age of 18 years or more and less than 65 years." Mandatory retirement at the age of 65 was prohibited in Ontario in 2006. However, section 25(2.1) remained in the Code with the result that it has been permissible to deny benefits, pension, superannuation or group insurance plans or funds to employees above the age of 65 through the combined interpretation of the Code and the ESA.

The Facts

The Complainant, T, was a teacher with the Grand Erie District School Board (the "Board"). His extended health, dental and life insurance benefits were terminated when he reached age 65, even though T continued to work on a full-time basis after he turned 65.

T alleged that the exception in section 25(2.1) of the Code that permitted the Board to stop his benefits at age 65 was unconstitutional and violated section 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter"). He argued that his health benefits supplemented his remuneration and that he needed the benefits because his wife had become gravely ill and did not have any benefits of her own.

A number of parties intervened in the hearing, including the Attorney General of Ontario, and the Ontario Human Rights Commission. This was the first case where the constitutionality of the exception in the Code had been challenged at the Human Rights Tribunal of Ontario (the "Tribunal").

The Decision

In an interim decision addressing only whether T could advance his claim at the Tribunal, the Tribunal found that section 25(2.1) of the Code infringed section 15(1) of the Charter and was, therefore, unconstitutional.

Importantly, the Tribunal noted that T's allegation of discrimination was limited to group health, dental and life insurance plans and did not address long-term disability insurance, superannuation or pension plans.

The Tribunal concluded that:

  • section 25(2.1) of the Code in conjunction with the ESA creates a distinction between workers under the age of 65 and those over the age of 65 who perform the same work; and
  • section 25(2.1) reinforces stereotypes and imposes a burden on workers 65 and older.

The Tribunal also stated that such a blanket carve out appears not to consider whether after age 65, associated benefit costs increase or if there is an increased need for benefits. Further, the Tribunal found that the objective of maintaining financial viability for group benefits plans could still be achieved without hindering the right of an employee to raise a complaint before the Tribunal to examine whether the aged-based distinction is reasonable in the circumstances. For example, the Tribunal could consider whether there is an actuarial basis to support an age-based differentiation in an employer's plan under the standard undue hardship analysis.

The Tribunal concluded that section 25(2.1) was not available to the Board as a defence to T's claim in the proceeding.

The merits of the underlying application and any potential remedies arising from the application have not yet been decided by the Tribunal.


It remains to be seen what the implications of this decision will be and whether this decision will be judicially reviewed.

At this time, section 25(2.1) of the Code continues to be in force and has not been declared invalid. The Tribunal's decision was limited to T's application and does not mean that section 25(2.1) of the Code ceases to apply in other cases. However, this decision may be persuasive to other adjudicators considering a similar issue at the Tribunal or before other administrative bodies.

Employers should be mindful of the decision and be aware that similar challenges may be made in the future by employees whose benefits are terminated at age 65. We will continue to provide updates regarding developments.

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