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

Copyright © 2019 Transcontinental Media G.P. Originally published on benefitscanada.com

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Cathleen Wright:

I would be interested to know what the CLHIA’s stand or comment is on this ruling, especially in light of the fact that the majority of insurance carriers have mandatory termination ages of 65 for some group benefits.

Tuesday, April 16 at 11:25 am | Reply

Chas:

I am wondering if a challenge to OTIP’s decision to unilaterally reduce active teachers’ LTD benefits based on seniority is far behind.

Perhaps an admission that it’s tough to manage late career claim durations, but it’s age discrimination nonetheless.

The teachers unions as well have now exposed themselves to a class action by knowingly approving the cut-back instead of raising rates and source deductions.

Trading off the interests of certain classes of union members in favour of others is not uncommon, but the time and place to do it is during collective bargaining and at the bargaining table, not after the agreement is signed.

Tuesday, April 16 at 11:26 am | Reply

CM:

The OHA is in a similar situation. LTD benefits end at age 65 yet we are seeing more employees working beyond that age. The same is true for HOOPP in that employees with 35 years of service in the pension plan are not eligible for free accrual if they go off on sick leave for more than 15 weeks, however, many of our employees have 35 years of service and have not yet reached the age they are eligible for early retirement (55). Something needs to change!!

Wednesday, April 17 at 7:01 am | Reply

Shirley Bomberry:

I too am wondering how this would be managed given the insurance carrier’s rules determine coverage for any employee over the age of 65. There are limitations to Life Insurance, LTD and health insurance.

Tuesday, April 23 at 12:36 pm | Reply

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