Summary
Mandatory retirement was eliminated in Ontario with the passage of Bill 211 in 2006; however, many employment-related benefits continue to draw distinctions based on age, typically using the age of 65 as the line of demarcation.
In a recent decision from the Human Rights Tribunal of Ontario, Gauthier v Corporation of the Township of Ignace, 2026 HRTO 48 (“Gauthier”), the Tribunal affirmed that the termination of an employee’s long-term disability (“LTD”) benefit coverage at age 65 does not violate the Ontario Human Rights Code (the “Code”).
Basic Facts
The applicant was employed by the respondent employer on a full-time basis but was absent from work and in receipt of LTD benefits. Shortly before the applicant’s 65th birthday, he was informed by the insurer that his benefits would end when he turned 65 in accordance with the terms of the insurance plan. Following the termination of his LTD benefits, the respondent employer also discontinued the $900 per month supplement it had been paying to the applicant while he was in receipt of LTD benefits.
The applicant alleged that the termination of his LTD benefits at age 65 constituted age-based discrimination contrary to section 5(1) of the Code. In its response to the application, the employer argued that the application should be dismissed based on section 25(2.1) of the Code.
Section 25(2.1) of the Code creates an exception to the general prohibition against age-based discrimination, stating that the right to equal treatment in employment without discrimination because of age is not infringed by an employee benefit or group insurance plan that complies with the Employment Standards Act (“ESA”). The ESA and O. Reg 286/01 prohibit discrimination with respect to group benefit plans based on age but define “age” as “any age of 18 years or more and than less than 65 years”. The employer argued that because the 65-year age limit under the LTD plan was permitted by the ESA, it was also permitted by the Code pursuant to section 25(2.1).
The applicant’s position was that he should have continued to receive LTD benefits in the same manner as every other full-time employee, and that he was denied benefits solely because of his age. Although the applicant expressed an intention to challenge the validity of section 25(2.1) of the Code under section 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter”), the applicant did not file a Notice of Constitutional Question or take any of the procedural steps necessary to do so.
The Decision
The Tribunal noted that the application alleged discrimination in the area of employment, pursuant to s. 5(1) of the Code, which provides that every person has a right to equal treatment with respect to employment without discrimination because of age. However, the Tribunal noted that the Code contains a number of exemptions which limit the application of section 5(1) and, by extension, the scope of the Tribunal’s jurisdiction.
The Tribunal found that subsection 25(2.1) of the Code established an exemption that limits the application of subsection 5(1) of the Code andits jurisdiction with respect to age-based discrimination where an employee benefit, pension, superannuation or group insurance plan or fund complies with the ESA and its Regulations.
The Tribunal found that, because the ESA and its Regulations define “age” as “any age of 18 years or more and less than 65 years”, the termination of benefits at age 65 in the employer’s LTD plan was compliant with the ESA and, accordingly, the Code. As a result, the Tribunal found that it had no jurisdiction to consider the application.
The Tribunal also noted that, although the applicant had not filed a Notice of Constitutional Question or made a full argument regarding whether the exception in section 25(2.1) of the Code contravenes section 15(1) of the Charter, the application cited Talos v Grand Erie District School Board, 2018 HRTO 680 (“Talos”). In Talos, the Tribunal determined that the applicant’s loss of extended health and dental benefits at age 65 created a direct disadvantage based on her age and that section 25(2.1) of the Code was unconstitutional as a result. Although these comments are obiter since the constitutionality of section 25(2.1) of the Code was not an issue directly argued in Gauthier, the Tribunal nevertheless noted that: i) the adjudicator in Talos explicitly did not address LTD, pension plans or superannuation funds in the decision; and ii) other human rights tribunals in Canada, including the British Columbia Human Rights Tribunal and the Canadian Human Rights Tribunal, have not followed Talos when considering the constitutionality of age limits in LTD and short-term disability plans.
As a result of the Tribunal’s finding that it did not have jurisdiction over the application since the exemption in section 25(2.1) applied, the application was dismissed on a preliminary basis.
Takeaways for Employers
The Tribunal’s decision affirms that, under the current state of the law in Ontario, LTD benefits coverage may lawfully terminate at age 65. Although Gauthier is a positive development for employers, it should be noted that the Tribunal has yet to directly determine the constitutionality of section 25(2.1) as it applies to age limits in an LTD plan in a case where full constitutional arguments have been made. That said, and as the Tribunal noted in Gauthier, human rights tribunals in other Canadian jurisdictions have upheld age-based distinctions in LTD plans, as have labour arbitrators in Ontario.[1] Employers should also bear in mind that the Tribunal’s ruling in Gauthier is only applicable to the 65-year age limit for LTD coverage and should not be read as approving of age-based distinctions in the provision of other employment benefits or at other age thresholds.
Need More Information?
For more information or assistance with understanding age limits in insurance coverage, contact Anne Marie Heenan at aheenan@filionlaw.com, or your regular lawyer at the firm.
[1] Bentley v. Air Canada and Air Canada Pilots Association, 2019 CHRT 37; Barker v. Molson Coors Breweries, 2019 BCHRT 192; and University Health Network (Toronto Western Hospital And Toronto General Hospital) v Ontario Nurses’ Association, 2025 CanLII 47230 (Gedalof).