Is section 25 (2.1) of the Human Rights Code unconstitutional?

The Human Rights Tribunal of Ontario (“the Tribunal”) recently determined that Section 25 (2.1) of the Human Rights Code (“the Code”) is unconstitutional.

The Tribunal in Talos v. Grand Erie District School Board, 2018 HRTO 680 (CanLII) considered whether or not section 25 (2.1) of the Code was unconstitutional when read in conjunction with section 44 of the Employment Standards Act.

Section 25 (2.1) of the Code states:

“The right under section 5 to equal treatment with respect to employment without discrimination because of age is not infringed by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act, 2000 and the regulations thereunder.” 

In essence, section 25 (2.1) allowed employers to remove employee benefits when an employee turned 65 without concern for an allegation of discrimination on the basis of age. 

Mr. Talos had his healthcare benefits and life insurance terminated once he turned 65 years of age. The School Board relied on section 25 (2.1) of the Code to defend their position. Mr. Talos argued the School Board breached section 15 (1) of the Charter of Rights and Freedoms (“the Charter”).

Section 15 (1) of the Charter states:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

The Tribunal determined that the treatment of Mr. Talos created a distinction based on age and further, that section 25 (2.1) of the Code breached the equality rights guaranteed by section 15 of the Charter by permitting lower compensation to older employees.

All statutory provisions must comply with the Charter. However, once a Charter breach is established it may be saved by section 1 of the Charter if the violation is a sufficiently justifiable limit on the right. The Tribunal found that the breach of section 15 was not permitted by section 1 of the Charter and concluded that the employer could have relied upon less drastic measures than to completely deny benefits at the age of 65.

An employer should no longer rely on section 25 (2.1) as a defence to discrimination. However, this was an interim decision and the merits of the case have yet to be heard.