Challenges to benefit plan distinctions

February 11, 2020 | Kim Ozubko

As discussed at our last A.M. Pension Webinar in December 2019, following the 2018 decision of the Ontario Human Rights Tribunal in Talos v. Grand Erie District School Board (“Talos”), employees and unions continue to challenge age-based benefit plan distinctions. In this post, we highlight two such cases from late 2019 and briefly review the decision in Talos.

Talos v. Grand Erie District School Board

As discussed in our December 18, 2018 post, in 2018, the Ontario Human Rights Tribunal (the “Ontario Tribunal”) considered whether or not Mr. Talos had experienced discrimination on the basis of age, in violation of the Canadian Charter of Rights and Freedoms (“Charter”), because his employer had terminated his health, dental and life insurance benefits at age 65 even though he continued to work. In a May 2018 interim decision, the Ontario Tribunal found that Mr. Talos’ rights under the equality provision of the Charter were unjustifiably infringed by application of subsection 25(2.1) of Ontario’s Human Rights Code and the Regulations to the Employment Standards Act, 2000, as these provisions create a distinction between employees who are over and under the age of 65.

The Ontario Tribunal expressly noted that its decision did not address long-term disability (“LTD”) insurance, pension plans and superannuation funds.

Markham Stouffville Hospital (Uxbridge Site) v. CUPE, Local 1999 (“Markham Hospital”)

Turning to 2019, in the Markham Hospital case, an arbitration board (the “Board”) considered the merits of a grievance in which the union argued that the Hospital had violated the applicable collective agreement by not continuing LTD benefit plan coverage for employees who work past age 65. At first instance, the Board allowed the grievance on the grounds that “[c]lear and unambiguous language would be needed” to find that the Hospital’s obligation to pay LTD premiums stopped at age 65 and that there was not clear and ambiguous language to that effect in the plan booklet or collective agreement.

The Hospital’s application for judicial review was dismissed in October 2019. According to the court, it was not unreasonable for the Board to find that “clear and unambiguous language is required to provide lesser benefits to employees who work after age 65.” The court also found that the Board’s decision that the employee booklet in question did not include such language was reasonable.

The court did not consider whether or not termination of the LTD benefit plan coverage at age 65 was discriminatory as the terms of the applicable documents were determinative. The decision is, therefore, a reminder to employers and plan sponsors of the importance of clear and unambiguous plan drafting, particularly when trying to define limits or set restrictions in benefit plan coverage.

Bentley v. Air Canada and Air Canada Pilots Association

In a case very similar to Talos, in November 2019, the Canadian Human Rights Tribunal (the “Federal Tribunal”) issued a decision in response to a pilot’s complaint that a collective agreement provision, which provided that LTD benefits may be terminated when a pilot becomes eligible for an unreduced pension, was discriminatory. Mr. Bentley, an Air Canada pilot, argued that the provisions in the Canadian Human Rights Benefit Regulations, which create exemptions for age-based distinctions in pension and LTD insurance plans, were in violation of the Charter.

Unlike the Ontario Tribunal in Talos, the Federal Tribunal dismissed the complaint. Among the reasons for its decision was its finding that pilots who were not eligible for LTD benefits still had access to a range of other benefit options and, as a result, were not at a disadvantage. The Federal Tribunal also distinguished the decision in Talos on the grounds that: (i) the Ontario Tribunal had expressly noted that its decision did not address LTD benefits; and (ii) the actuarial evidence presented to the Federal Tribunal supported the argument that the financial viability of the LTD plan could be undermined if it were extended to older pilots, which was not the case in Talos.

For further information of any of these cases, please contact Kim Ozubko at or (416-597-4338) and subscribe to our A.M. Pension Blog series to stay informed on the latest developments.


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