Ontario Human Rights Code, ESA have exceptions for employee benefits
A worker was not subjected to age discrimination under the Ontario Human Rights Code when his employee disability benefits and life insurance changed after he turned 65 years old, the Ontario Human Rights Tribunal has ruled.
The worker was employed with Real Canadian Superstore, a chain of grocery stores owned by Loblaws. When the worker turned 65 years old, his maximum allowable life insurance claim decreased and his short-term disability (STD) and long-term disability (LTD) benefits were changed.
The worker filed a human rights complaint alleging discrimination with respect to employment because of age. The complaint referred to s. 5(1) of the Ontario Human Rights Code, which states that everyone has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, ethnic origin, citizenship, creed, age, sexual orientation, record of offences, marital status, or disability.
The tribunal noted that its jurisdiction was limited to enforcement of the code, not “general allegations of unfairness unrelated to the code.” It also referred to ss. 25(2.1) of the codes, which contains exemptions to the discrimination provisions specifically related to age.
Retirement inquires that are part of a proactive succession plan is not age discrimination, the Alberta Human Rights Tribunal ruled.
Exemption from age discrimination
Subsection 25(2.1) states that the right to equal treatment with respect to employment because of age “is not infringed by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the [Ontario] Employment Standards Act, 2000 and the regulations thereunder.”
In April 2022, the tribunal notified the worker that it intended to dismiss his complaint under ss 25(2.1) of the code and the exemption for benefits under that subsection. About six months later, the worker confirmed that Loblaws’ benefits package complied with the Employment Standards Act, 2000.
With this acknowledgment, the tribunal determined that it did not have jurisdiction to consider the worker’s age discrimination complaint given that it had to do with employee benefits.
The tribunal noted its 2018 decision in Talos v. Grand Erie District School Board, 2018 HRTO 680, in which it found that ss. 25(2.1) of the code was unconstitutional where an employee experienced “a direct disadvantage due to their age” when health and dental benefits ended. However, that decision clearly stated that it “does not address long-term disability insurance, pension plans and superannuation funds.”
A voluntary early retirement plan with a minimum age requirement was allowed under the Ontario ESA to establish normal pensionable dates or ages, the Ontario Human Rights Tribunal found.
Normal pensionable age
The tribunal also referred to the Canadian Human Rights Benefits Regulations, which have similar provisions to ss. 25(2.1) of the Ontario Human Rights Code. These provisions state that a disability income insurance plan provision does not constitute the basis for a human right complaint if an employee is excluded because they attained the age at which a plan member would not be eligible to receive benefits, if that age is “not less than 65 or the normal pensionable age under the pension plan of which the employee is a member, whichever occurs first.”
These regulations had been found to be constitutional by the Canadian Human Rights Tribunal, the tribunal said.
The tribunal found no evidence that the decrease in the worker’s STD and LTD benefits and maximum life insurance claim were not included under the Ontario Human Rights Code’s exemption in ss. 25(2.1). As a result, it did not have jurisdiction to consider the worker’s complaint.
The age discrimination complaint was dismissed. See Griggs v. Loblaws (Real Canadian Superstore), 2023 HRTO 166.
