Settlement reached in Ontario age discrimination benefits case

Following the Human Rights Tribunal of Ontario’s decision in a landmark age discrimination case last year, former high school teacher Steve Talos has reached a settlement with the Grand Erie District School Board.

Though Ontario abolished mandatory retirement in 2006, it still allowed employers to terminate benefits plans for workers age 65 and over. In May 2018, in the case Talos v. Grand Erie District School Board, the province’s Human Rights Tribunal determined the provision in the Human Rights Code that allowed employers to do so was unconstitutional.

The Grand Erie District School Board didn’t offer benefits to teachers over age 65, but Talos wanted to keep teaching so his benefits could cover his wife’s medication for ovarian cancer. This led Talos to file a complaint with the Human Rights Tribunal, citing age discrimination.

Read: Age discrimination in benefits plans unconstitutional, tribunal finds

The tribunal originally determined the board’s defence was valid, because a section of the Human Rights Code permits pension and benefit plans to treat employees older than 65 and younger than 18 differently than their colleagues. Talos argued the provision was unconstitutional, violating the Canadian Charter of Rights and Freedoms.

The tribunal’s interim decision agreed with Talos, noting it’s unfair that 65-year-old employees with the same duties as colleagues who are 64 or younger see their benefits cut simply due to their age.

Last month, Talos received a settlement for an undisclosed amount. “Money, or whatever kind of settlement I may have received, would never have made me happy, because I live with the pain and suffering, emotional and psychological impact that I went through over the last six years,” he says. “That will never go away. There were two things in my life I really loved — my wife and my teaching.”

Read: Legal cases highlight issues around LTD coverage

Talos’ wife lost her battle with ovarian cancer two years ago and he has since resigned from his teaching post. The school board hasn’t responded to Benefits Canada’s request for comment.

What are the case’s implications for employers? Since no legislation has been introduced, it’s still very much a wait-and-see situation, says Sherry Shaw, vice-president of health and benefits at Accompass Inc. “It’s also because the Charter and Employment Standards Act are out of alignment, so until those become consistent, it’s business as usual. But what we’re recommending to clients is, let’s benchmark, let’s see where you are compared to your sector.”

And if employers find they’re below the median, they should be proactively moving their termination ages up. “It shows you’ve taken a step to extend benefits longer and you’re aligned with your peer group, and right now you can make those changes with very little impact to your pricing,” adds Shaw.

Read: A 2018 roundup of the top legal cases in the benefits industry