Over (65) And Out In Benefit Plans Is Unconstitutional HRTO Rules

On May 18, 2018, the Human Rights Tribunal of Ontario (the "Tribunal") released its interim decision in Talos v Grand Erie District School Board.¹ The Tribunal held that section 25(2.1) of the Ontario Human Rights Code ("Code"), which permitted differentiation in benefit plans to employees age 65 and older, was unconstitutional.

Background and Decision

Mr. Talos brought an application alleging discrimination on the basis of age after his employer terminated his participation in various benefit plans on his 65th birthday, as per the terms of the plan.

The Tribunal in finding that section 25(2.1) was unconstitutional noted that employees age 65 and older provide the same labour as they did when they were 64. However, section 25(2.1) has meant that until age 65, employees have been guaranteed equal compensation and access to benefits but, by virtue of turning 65, the legislation allows them to be removed from benefit plans.