For many years, even since the removal of mandatory retirement
in Ontario, it has been permissible to deny benefits, pension,
superannuation or group insurance plans or funds to employees over
65 due to an exception in the Ontario Human Rights Code.
However, a recent decision from the Human Rights Tribunal of
Ontario (Talos v Grand Erie District School Board,
2018 HRTO 680) (PDF) found that this exception is
unconstitutional.
Background
While the Ontario Human Rights Code
("Code") prohibits discrimination on the basis
of age, section 25(2.1) of the Code provides an exception
to a claim of discrimination on the basis of age for employee
benefit, pension, superannuation or group insurance plans or funds
that comply with the Employment Standards Act, 2000
("ESA"). The Regulations to the ESA
define "age" as "any age of 18 years or more and
less than 65 years." Mandatory retirement at the age of 65 was
prohibited in Ontario in 2006. However, section 25(2.1) remained
