Will you still get benefits after 65?...The end of mandatory retirement and employment benefits

In January, 2008 British Columbia joined a number of other Canadian provinces and changed the Human Rights Code to prohibit discrimination against employees who are sixty five years or older. The immediate impact is that collective agreement provisions that say employees must retire at age sixty five are no longer enforceable. How this will play out in the workplace remains to be seen. However it is clear that employers, and unions, will have to brush up on the meaning of the duty to accommodate when it comes to older employees in the workplace.

Another issue that has come up is how this amendment affects the availability of benefits to employees over the age of sixty five.

Under s. 3(b) of the BC Human Rights Code the prohibition on discrimination on the basis of marital status, physical or mental disability, sex or age, doesn't apply to "the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employee."(emphasis added)

The legislative intent then is clear that there can be different levels of coverage for employees depending on their age. But, this doesn't mean that group benefit or insurance plans (or indeed even retirement or pension plans) should not be reviewed to ensure that they meet the "bona fide" test outlined by the Supreme Court of Canada in Zurich Insurance Co. v. Ontario Human Rights Commission http://scc.lexum.umontreal.ca/en/1992/1992rcs2-321/1992rcs2-321.html.

To justify a discriminatory plan (and remember, age is only one way that they can discriminate)
the employer will have to establish the following:

1. that the plan was adopted honestly, in the interests of sound and accepted business practice, and not for the purpose of defeating the rights protected by the Code (i.e. for the purpose of discriminating for example)

2. the age-based distinction was based on a sound and accepted insurance or pension practice; and

3. there was no practical alternative to the age-based distinction, having regard to all the facts of the case.

In my view it is the last point that may generate some results. It's important for unions to put the employer to the test, particularly at the bagaining table. Unions, as well as employers, should investigate the availability and the cost of benefit plans that have no age or a higher than usual age limit. It seems to me that the range of practical alternatives will have to broaden as more and more people work beyond the traditional retirement age.

It's also important to look closely at the collective agreement language to see whethere there is an obligation on an employer to continue to provide health benefits beyond age sixty five.

A recent arbitration award out of Ontario Corporation of the City of London and CUPE Local 101 found that where a collective agreement provides benefits to "all employees" the effect of the elimination of mandatory retirement meant that employees over sixty five were covered.