The Ontario Human Rights Tribunal’s recent ruling that it’s unconstitutional for plan sponsors to discontinue benefits for employees after the age of 65 represents a fundamental shift for employers, according to one labour and employment lawyer.

“Previously, the Human Rights Tribunal would not enforce any discrimination issues if employers were to cut off benefits at the age of 65 for employees,” says Chantel Goldsmith, a partner at Samfiru Tumarkin LLP.

“But now, with this decision, everything has essentially flipped, and if employers cancel benefits for employees after the age of 65, there is the chance that they could bring discrimination claims and that the Human Rights Tribunal would use that decision as a precedent going forward. Then they could be found to be discriminating against the employee because of their age.” 

Read: Age discrimination in benefits plans unconstitutional, tribunal finds

In terms of how employers can protect themselves, Goldsmith says it depends on whether or not its insurer continues to provide benefits past age 65. The easiest path is where an insurer does provide retiree coverage, she notes, suggesting that where that isn’t an option, the employer should provide a cash payment so employees can buy their own benefits.

In her view, Goldsmith, legislators should have done away with the ability to cut off benefits at age 65 when they eliminated mandatory retirement.

“People are working longer now and so long as they are working, why should they be cut off of their further benefits of employment? It forms part of their entire remuneration package as an employee, and to take something away from that would constitute discrimination because of their age,” says Goldsmith.

The ruling could, of course, have significant implications for benefits plans. Was the tribunal correct in finding the rules allowing employers to terminate benefits at age 65 unconstitutional? Is it an overdue recognition that people are working longer, as Goldsmith suggests, or are there good reasons for ending benefits at age 65 given, for example, potential hardship for employers? Have your say in Benefits Canada‘s weekly online poll.

Have your say: Is it unconstitutional to discontinue benefits at age 65?

The previous online poll asked whether Canadian governments should have a larger role in dental care. The poll saw a fairly even split, with 38 per cent saying governments already have enough to deal with around pharmacare and suggesting a new program would be expensive given the good private coverage already in place. Another 31 per cent agreed that high costs and lack of access for many Canadians mean it’s time for more robust public coverage. Rounding things out, the remaining 31 per cent of respondents said there’s some role for an expansion of public coverage on a limited basis to include more people without employer-sponsored dental benefits.

Read: A closer look at Ontario political parties’ pension, benefits promises

Copyright © 2018 Transcontinental Media G.P. Originally published on benefitscanada.com

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