Staying current on the latest legal issues related to benefits is important as Canadian employees continue trending towards becoming an older and aging workforce.
A recent British Columbia Human Rights Tribunal (BCHRT) decision heard a complaint that alleged the City of Vancouver’s group benefits plan is discriminatory based on age under s.13(3)(b) of the British Columbia Human Rights Code because it deprives employees over 65 from LTD benefits. Interestingly enough, it is of particular note that the Collective Agreement does indeed provide older employees over 65 health and welfare benefits. They are entitled to: medical coverage, an extended health care plan, dental services plan, short-term disability benefits plan, and a gratuity plan.
According to the BCHRT, it is critically important that two legal tests are applied when determining if a benefits plan (or any insurance plan) discriminates against protected rights, in this case, is discriminatory based on age. The first test at hand was whether or not the City of Vancouver’s group benefits plan was a bona fide plan. As outlined in New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., the purpose of inquiry is to focus on the overall bona fides of a plan. Meaning, the focus is not on the actuarial details or mechanics and the terms and conditions, but rather, the plan as a whole in its total composition. Basically, unless there is evidence to prove the plan as a whole is not legitimate, the plan is protected from assumptions or conclusions that particular provisions, such as eligibility based on age, will not constitute discrimination.
The second test determines if the plan meets the reasonableness test set out in Zurich Insurance Co. v. Ontario (Human Rights Commission). It seeks not only to determine if the plan as a whole is bona fide but also that it is: based on a sound and accepted insurance practice, there is no practical alternative adopted honestly, and the plan was enacted in the interest of sound and accepted business practices not for the purpose of defeating rights protected under the Code.
The BCHRT’s decision was that the plan as a whole (and not specific provisions) was a bona fide and reasonable plan that does not contravene s.13(3)(b) for the purpose of depriving LTD benefits because of age.
This decision highlights the important distinction courts and Human Rights Tribunals place between plan provisions and plans as a whole when it comes to determining if protected rights were infringed upon. This will offer future clarity for employers when it comes to administering and designing future benefit plans for an aging workforce.
Source: a summarized article from Johnston obo others v. City of Vancouver (No. 2), 2015 BCHRT 90
E&OE
http://www.bchrt.bc.ca/decisions/2015/pdf/may/90_Johnston_obo_others_v_City_of_Vancouver_No_2_2015_BCHRT_90.pdf
