Benefits for Employees Over 65

By Merovitz Potechin on Tuesday October 15, 2019.

A recent decision of the Human Rights Tribunal of Ontario, is changing how provincially regulated employers in Ontario deal with the provision of benefits for employees who are 65 years of age and over. In Talos v. Grand Erie District School Board, 2018 HRTO 680 (CANLII), Mr. Talos brought an Application before the Human Rights Tribunal seeking a determination that the legislative exceptions that allow benefits to be cut off at 65, infringed his equality rights and were unconstitutional. 

Talos v. Grand Erie District School Board, 2018 

The background of Talos is rather tragic. Mr. Talos was a high school teacher who had chosen to work past the age of 65. Once Mr. Talos turned 65, he lost his health, dental and life insurance benefits. At the same time, his wife was suffering from Stage 4 cancer and the record suggests that the family did not have the resources to obtain appropriate insurance or pay for all her medications, that were not covered by the government, out of pocket. 

The Interim Decision 

In its interim decision, the Tribunal held that the Mr. Talos had experienced a direct disadvantage on the basis of age and that his Charter rights had been infringed. 

Employees aged 65 and older had been made vulnerable through the Code provision and deprived of protection in a manner that allowed employers to cut off or reduce their health, dental and life insurance benefits without the need for justification. The Tribunal found that the relevant section of the Code infringed on Mr. Talos’ Charter rights of equality and therefore could not be used as a defence by his employer. The Tribunal did not have the ability to make a declaration that the section was unconstitutional.  

The interim decision was not appealed, and Mr. Talos and the school board ended up resolving their dispute. As such, no further guidance came from the Tribunal or judicial review by the court. 

Mr. Talos’ wife passed away in 2016, two years before the interim decision and three years before the matter ultimately settled in 2019. 

Past Reasoning 

Prior to Talos, employers understood with some degree of certainty that they could stop providing certain group benefits to employees once they reached 65 years of age. This was due to the combined effect of provisions of the Ontario Human Rights Code and the Employment Standards Act which made such differentiation within the workforce permissible.  

Interestingly, the relevant provisions were specifically left in force when changes to the Ontario Human Rights Code outlawed mandatory retirement policies. It seems that the legislators sought to offset the potential increased employer costs involved in post-65 employment by removing their benefits, albeit no longer forcing them to retire. It was thought that the cost of providing certain group benefits coverage to older employees was greater than that of the younger set given the likelihood that such employees would access benefits more often.  

A Potential Area for Dispute 

While limited to certain benefits, this case is giving employers pause when considering what to do about providing benefits to their 65-plus workforce. Since the government has yet to introduce legislation to resolve this issue, it remains a potential area of dispute between employers and employees. That being said, employers are now aware of a potential risk they face in terminating certain benefits when an employee reaches 65 and employees are now aware of a potential claim they have should their benefits be cut off by reason of age alone.  

If you would like to know more about your rights as an employee over the age of 65 or if you have questions regarding your benefits, you can contact the Employment Law lawyers at Merovitz Potechin LLP.