Cutting workers off health, dental, and life insurance benefits when they turn 65 is unconstitutional, the province’s human rights tribunal has ruled in a significant case that could spark legislative changes and prompt employers to make their benefit plans more equitable.
The Human Rights Tribunal of Ontario issued an interim decision in favour of Brantford teacher Steve Talos, who challenged Grand Erie District School Board’s decision to exclude him from their benefit plan when he turned 65.
That, the tribunal found, amounted to age discrimination — while the legal loopholes that allowed it to happen “send a message that older workers are essentially of lesser worth and value than their younger co-workers.”
“They fail to recognize the contribution of older workers to their workplaces or the importance of work to older workers,” wrote tribunal vice-chair Yola Grant in her decision.
In 2006, Ontario passed a law that ended the ability of employers to terminate workers when they turned 65. But the province’s Human Rights Code and Employment Standards Act still allow employers to cut workers off benefits when they turn 65, which the tribunal decision called a violation of the Charter of Rights and Freedoms.
The decision means employers will no longer be able to rely on the Human Rights Code and Employment Standards Act to justify excluding workers over 65 from their benefits plans, and will make them vulnerable to lawsuits if they do.
Talos called the decision, which was six years in the making, a “victory” for senior workers who want to continue to remain employed “beyond the traditional retirement age mandated by the federal government.”
“I enjoy what I do, I enjoy teaching,” Talos, now 71, told the Star. “As long as you can do the same job, why should you be discriminated against?”
As a result of having his benefits slashed, the tribunal heard that Talos paid out-of-pocket for some of the drugs needed to treat his wife’s stage-four ovarian cancer.
“Without those drugs, it was my opinion at the time that her life was being further threatened by the fact that we did not have a group benefit policy.”
During the hearing, Talos said he was a “hardworking, diligent, conscientious teacher.”
“I saw no bona fide or legimitate reason why, just because I had some grey hair and was 65, that I should be treated any differently,” he added.
Talos said the case was a “gruelling ordeal” for his wife, Diane, who testified at the hearing, and died in 2016.
“I will have to live with that memory,” he said.
Several teachers’ unions were intervenors in the case, along with the Ontario Human Rights Commission, which says it has “reached out to human resource professionals and business leaders to advise them of the decision so they can make sure their benefit plans are consistent with the law.”
“This is a significant case because it establishes that all workers deserve fair benefits and it also acknowledges that loss of benefits have a disproportionate impact on poor and older workers,” OHRC Chief Commissioner Renu Mandhane told the Star on Monday.
She said the commission is now urging the government to bring its legislation in line with the tribunal’s findings.
The tribunal’s vice-chair gave the parties 45 days to decide whether they will mediate a final settlement; if not, the tribunal will decide on a final remedy.
The human rights tribunal cannot strike down legislation and the government could still appeal the ruling. A spokesperson for the Ministry of Labour said it was reviewing the decision and would not comment further as the case was still before the tribunal.
In a statement to the Star, Grand Erie District School Board spokesperson Kimberley Newhouse said the organization “respects the decision made by the Human Rights Tribunal of Ontario.”
“In terms of an appeal, we will have to take some time and consult with our legal counsel,” she added.
Based on evidence presented in Talos’s case, the tribunal ruled that it was “not cost-prohibitive” to include older workers in health care coverage and modified life insurance benefits because only 2 to 3 per cent of the school board’s workforce was over 65. Talos’s case did not make a claim for long-term disability benefits or membership in the school board’s pension plan.
The tribunal rejected the school board’s argument that Talos “suffered no disadvantage” because of the “generous” nature of his pension or because he benefited from being a member of a union.
“Talos was denied the protection of the code, not because he had a long successful career or was unionized, but because he was over age 65,” said the decision, released in May.
The decision also notes that older workers’ lack of protection under the human rights code and employment laws was problematic for low-wage and precarious workers who are often new immigrants or workers with disabled and dependent family members.
“All of these workers tend to be among the least prepared for complete withdrawal from work at age 65,” Grant wrote.
Meanwhile, Talos who took last semester off, will be back at Simcoe Composite High School in the fall teaching history and law. He said he has “no specific plans” to retire.
“I love working with young people,” he said. “I’d rather be teaching a classroom than hitting a little golf ball.”
https://www.thestar.com/news/gta/2018/06/04/cutting-off-workers-from-benefits-at-65-unconstitutional-human-rights-tribunal-rules.html
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