{"id":17744,"date":"2019-12-06T09:00:05","date_gmt":"2019-12-06T14:00:05","guid":{"rendered":"https:\/\/www.benefitscanada.com\/news\/b-c-tribunal-finds-reduced-benefits-for-older-workers-not-age-discrimination-139911"},"modified":"2019-12-06T09:00:05","modified_gmt":"2019-12-06T14:00:05","slug":"b-c-tribunal-finds-reduced-benefits-for-older-workers-not-age-discrimination","status":"publish","type":"post","link":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/2019\/12\/06\/b-c-tribunal-finds-reduced-benefits-for-older-workers-not-age-discrimination\/","title":{"rendered":"B.C. tribunal finds reduced benefits for older workers not age discrimination"},"content":{"rendered":"
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Kelsey Rolfe<\/span> | December 6, 2019<\/p>\n

The British Columbia Human Rights Tribunal has dismissed a complaint from a Molson Coors Beverage Co. retiree who alleged the company\u2019s employee benefits plan was discriminatory on the basis of age.<\/p>\n

The tribunal found providing reduced benefits to employees over the age of 65 isn\u2019t considered discrimination under the province\u2019s Human Rights Code.<\/p>\n

The decision is based on a section in the code that makes an exception for employment discrimination on the grounds of age, marital status, physical or mental disability and sex, as long as it\u2019s part of a so-called bona fide group or employee insurance plan that\u2019s been adopted in good faith, rather than for the purpose of defeating employees\u2019 protected rights.<\/p>\n

Read: Settlement reached in Ontario age discrimination benefits case<\/a><\/strong><\/p>\n

John Barker, an employee of Molson and its predecessor for 25 years, filed a complaint after his benefits were reduced in 2015, when he was 68. For employees over 65, Molson no longer covers short- or long-term disability, dental and vision care, and significantly reduces life and accidental death and dismemberment insurance coverage.<\/p>\n

Barker said the plan was discriminatory because benefits are part of employee compensation. Therefore, an employee over the age of 65 is effectively receiving $6,000 less than an employee under age 64 doing the same work.<\/p>\n

In writing the decision, tribunal member Devyn Cousineau said the tribunal didn\u2019t have the ability to rule on the constitutionality of the exception and whether it impinged on Barker\u2019s rights under the Canadian Charter of Rights and Freedoms.<\/p>\n

Read: Age discrimination in benefits plans unconstitutional, tribunal finds<\/a><\/strong><\/p>\n

\u201cWhile I have serious reservations about the constitutionality of [the exception] and its impact on Mr. Barker\u2019s Charter <\/em>rights in this case, I find I have no choice but to conclude that the exemption applies,\u201d she wrote.<\/p>\n

The ruling is a contrast to a May 2018 ruling on benefits age discrimination in Ontario<\/a>. In Talos v. Grand Erie District School Board,<\/em> the Human Rights Tribunal of Ontario ruled that the provision in the provincial human rights code that allowed employers to terminate benefits at age 65 was unconstitutional.<\/p>\n

The difference in rulings is down to what each tribunal is able to review, says Sukhvinder Dulay, a pension and benefits lawyer at Hicks Morley Hamilton Stewart Storie LLP. While the the Human Rights Tribunal of Ontario can consider the constitutionality of such provisions, B.C.\u2019s tribunal can\u2019t. <\/p>\n

\u201cThe B.C. rule is quite different than Ontario in the sense that they have a statutory rule that the tribunal is not meant to examine Charter issues, which is exactly what the Ontario tribunal did,\u201d she says. \u201cI think we will probably just continue to see that. It will come up in all the jurisdictions, but the way they treat it will be based on what the law is in each jurisdiction.\u201d<\/p>\n

Read: Court dismisses age discrimination appeal in long-term disability case<\/a><\/strong><\/p>\n

The more \u201cinfluential\u201d decisions for employers may come when some of the age-discrimination cases make it to judicial review by a court, says Dulay. \u201cThis is certainly on a lot of employees\u2019 and employers\u2019 radars, where they\u2019re taking a closer look at their benefits program to see age-based coverage limitations that are in there.\u201d<\/p>\n

Molson\u2019s reduction in benefits coverage at age 65 is a relic of a 1988 collective bargaining agreement. At the time, B.C. had a mandatory retirement rule in place, but the company wanted to retain an employee past age 65. The collective agreement included a letter of understanding between the parties, which contemplated abolishing mandatory retirement and set out that any employee who worked past age 65 would be entitled to the same employee benefits as a retiree. While the union first objected, Molson argued it would be too expensive to provide full benefits, such as long-term disability, to older workers.<\/p>\n

Read: What are employer\u2019s options for reducing risk in retiree health plans?<\/a><\/strong><\/p>\n

The letter of understanding stuck around through successive collective bargaining agreements. In March 2015, in preparation for another round of bargaining, Molson realized it had inadvertently failed to apply the benefits reduction to its workers over 65. It notified the union that it planned to do so, but gave those employees dental benefits until Sept. 1, 2015 to allow them to address any immediate dental concerns.<\/p>\n

Barker argued the cessation of dental coverage meant the plan wasn\u2019t bona fide, as there was no actuarial reason to terminate those benefits for workers over the age of 65. However, Cousineau said she was bound to evaluate the plan as a whole, rather than examine the actuarial details, and found it to be genuine.<\/p>\n

Read: A 2018 roundup of the top legal cases in the benefits industry<\/a><\/strong><\/p>\n

Read the full article at BenefitsCanada.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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