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Ontario Human Rights Tribunal Deems Human Rights Code and Employment Standards Provisions Unconstitutional
July 9, 2018
Author(s): Jaime H. Hoopes

A recent decision of the Ontario Human Rights Commission has concluded that provisions of Ontario’s Human Rights Code (“Code”) and Employment Standards Act (“ESA”) violate the prohibition against age-based discrimination in section 15(1) of the Canadian Charter of Rights and Freedoms (“Charter”).

In the recent decision of Talos v. Grand Erie School Board, 2018 HRTO 680 (“Talos”) the Applicant, a high school teacher, alleged that the respondent School Board’s benefits plan was discriminatory. Under the plan, an employee who reaches age 65 would no longer be entitled to extended health and dental benefits.

Section 25(2.1) of the Code holds that discrimination on the basis of age is not infringed by an employee benefit plan that complies with the ESA. That is, considered together, the Code and the ESA effectively allow distinctions on the basis of age in relation to pension, benefit, and insurance plans for employees over 65 years old.

In an interim decision, Talos v. Grand Erie District School Board, 2013 HRTO 1949, the Tribunal had concluded that the Code does not prohibit discrimination in benefit plans with respect to employees who are over the age of 65 by virtue of section 25(2.1) of the Code. Nonetheless, the Tribunal granted leave to proceed with a constitutional challenge to the legislative scheme itself as being contrary to the right to equal protection and equal benefit of the law without discrimination pursuant to section 15 of the Charter.

Now, the Tribunal has ruled that the impugned provision(s) make a distinction on the basis of age, and that this discrepancy creates difficulties in relation related to both the financial and emotional costs associated with the loss of benefit coverage, stating as follows (at para. 244):

[T]he impugned law operates to permit lower compensation to older workers, without regard to individual circumstances and without regard to the social, political, economic and historical factors concerning the same group of workers over age 65… This serves to devalue the contributions of workers age 65 and older in the workplace and entrenches the stereotype that their labour is worth less. … and thus infringes the equality guarantee of s. 15(1) of the Charter.

In determining whether the infringement could be justified under section 1 of the Charter, as a reasonable limit “prescribed by law”, the Tribunal concluded it could not. Among other things, the Tribunal observed that the legislation allowed for a blanket “carve-out” of benefits for employees aged 65 or older but failed to consider whether there were any alternatives to minimize the impairment. For instance, the Tribunal found it would be less-impairing to allow a case-by-case analysis of whether the employer’s provision of lesser benefits for such employees was undertaken in good faith to maintain the financial viability of a benefit plan.

In the result, the Tribunal refused to apply the impugned Code provision in the proceeding before it. Rather, it would require the School Board to demonstrate that terminating the Applicant’s benefits at age 65 fell within another statutory defense to discrimination under the Code (e.g., that providing benefits would constitute an undue hardship).

The implications of this decision are likely to be far-reaching as similar statutory exemptions for benefit plans exist in many jurisdictions across Canada, including British Columbia. While the decision will almost certainly be appealed, employers should be prepared to demonstrate that their benefit plans have a stand-alone justification to make a distinction on the basis of age.