A landmark Human Rights Tribunal of Ontario ruling, which recently determined that cutting or reducing benefits for workers over the age of 65 amounts to discrimination, is expected to have significant implications for older workers from coast to coast.
After more than a year and a half of deliberation, the tribunal decided in favour of Brantford teacher Steve Talos, who was taken off the Grand Erie District School Board’s benefits plan upon reaching the age of 65. On May 18 the tribunal determined that doing so violates Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees Canadians protection from discrimination on the basis of age.
“The tribunal found, five years ago, that the legislation allows the Grand Erie District School Board to do what it did, and the only way this could possibly move forward and be successful was if we challenged the legislation itself,” said Jamie Melnick, who represented Mr. Talos in the Ontario Human Rights Tribunal case. “This decision I believe is the first decision in Canadian history that has found in favour of the applicant on the basis of age discrimination under the Constitution.”
While the Grand Erie District School Board has 45 days following the ruling to appeal the decision, and though it only directly applies to the one province, legal experts believe it will have implications across the country. “Even if they do appeal it, the decision itself is huge, because it sends a signal to both the legislature and particularly large employers that have full cost-capture for insurance benefits that the writing is on the wall,” said Mr. Melnick.
Kimberly Newhouse, the manager of communications and community relations for the Grand Erie District School Board, says the organization “will have to take some time and consult with our legal counsel” before determining whether or not to appeal, adding that they respect the decision made by the tribunal and that their employees’ benefits are now handled by the Provincial Benefits Trust.
Employment and labour lawyers across the country have been eagerly anticipating the Ontario tribunal’s ruling. “We have a remarkably similar piece of legislation with our human rights code,” said Vancouver-based labour and employment lawyer Leo McGrady.
Mr. McGrady says that the conditions that led to the Talos case are similar in most provinces, as many have shared roots in the fight to end mandatory retirement in the 1990s. “The provinces went in domino fashion to ban mandatory retirement, but they all preserved this vestige [addressing insurance and benefits] of the 70s and 80s,” he said.
When mandatory retirement was deemed unconstitutional, employers successfully argued it was cost prohibitive to insure this new cohort of older workers, Mr. McGrady says. While the Human Rights Tribunal of Ontario rejected that argument in the Talos decision, it did leave room for some employers to make a case on the basis of unsustainable costs, particularly those with a smaller workforce.
“This doesn’t mean that small and medium-sized employers will be forced to give benefits,” explained Mr. Melnick. “What it would mean is that small and medium employers can’t just rely on the legislation; they would have to fall back on the standard defence, which is that it’s actually cost prohibitive, and they can’t provide benefits without undue hardship.”
Mr. McGrady, Mr. Melnick and other legal professionals have spent years arguing that the additional costs don’t amount to undue hardship for larger employers with group benefits packages and should not be considered “reasonable limits” under section 1 of the Canadian Charter of Rights and Freedoms.
The situation is also similar for workers in industries that fall under federal jurisdiction, such as transportation, finance and communications. “Technically. the Ontario decision from the human rights tribunal is not a precedent that is binding on the federal jurisdiction, but it certainly will be influential,” said Raymond Hall, a B.C.-based human rights lawyer and former Air Canada pilot.
Mr. Hall says he also watched the Talos case closely, having argued against the mandatory retirement age enforced by his former employer before the Canadian Human Rights Tribunal.
“I love the decision because I love the detail in the reasoning,” he said. “It’s very thorough and canvasses the entire scope of Charter issues that affect individuals who have been historically disadvantaged by age discrimination.”
While he often represents commercial airline pilots, Mr. Hall says the Talos decision will most affect those who have experienced disruptions in their career, such as immigrants, the disabled, part-time workers and women who have taken time off of work to have children. He explains that these historically disadvantaged groups are less likely to be in a position to retire comfortably by the age of 65, and are more likely to be reliant on their employee benefits.
“What this decision stands for is that it’s not acceptable for employers to routinely and categorically take away benefits from older workers,” said Renu Mandhane, the Chief Commissioner of the Ontario Human Rights Council. “The decision is important because it sends a message that older workers are equally valuable, that they’re equal contributors in the workforce.”