Can unfair employment end age discrimination: Reasonable Doubt

September 14, 2018
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From NOW Magazine's Reasonable Doubt column: Employees in Ontario are retiring later than ever. Life expectancies have consistently risen and people now work into their 60s and 70s in order to support themselves as they live longer. For most, gone are the days of "freedom 55."

Older employees are not, however, receiving the same benefit coverage as their younger counterparts. Many employers provide health and dental insurance coverage - prescriptions, massage and chiropractic - along with life and disability insurance benefits. These benefit plans typically stop at age 65. So, employees over age 65 who continue to work no longer have access to the same benefit coverage as their colleagues.

This age discrimination is currently legislated in Ontario. The Human Rights Code ( the Code) is meant to protect us from discrimination at work. However, the Code along with the Employment Standards Act provides that employers are legally allowed to cut off and/or modify benefits such as health and dental plans, life and disability insurance, and pension plans for employees over the age of 65. Without private coverage, Canadians over the age of 65 can expect to spend $5,391 out-of-pocket a year on medical costs, which are on the rise, according to the 2014 BMO Wealth Institute Report.

A recent landmark ruling provides some hope of change for this unfair employment situation. In that case, the applicant, Wayne Talos, was an employee over 65 who worked for the Grand Erie District School Board. Mr. Talos's wife was living with cancer, requiring many pharmaceuticals as part of her treatment. She was covered under Mr. Talos's drug plan at work, until that was cut off when he turned 65.

Mr. Talos successfully challenged the section of the Code that allowed employers to treat him differently than his co-workers based on his age. In Talos v Grand Erie District School Board, the Human Rights Tribunal ruled that this section of the Code discriminates against able, qualified, and willing older workers. It also ruled that this section in the legislation was based on faulty information.

Back when the Ontario government was making changes to the human rights legislation, it considered this issue but found it would be too costly for employers to continue benefits for employees beyond age 65. This time around, the Tribunal looked at all of the evidence and disagreed. It decided that the evidence proves it is financially viable for most employers to continue employee benefits until the age of 79.

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