Ontario arbitrator upholds long-term disability cut-off at age 65 for hospital network nurses following Charter challenge
June 18, 2025
An arbitrator has ruled that a hospital network can lawfully stop nurses’ long-term disability (“LTD”) coverage at age 65 under carve-outs to age discrimination protections in Ontario’s Human Rights Code (“OHRC”) and Employment Standards Act, 2000 (“ESA”).
The University Health Network (“UHN") – which employs many members of the Ontario Nurses’ Association (“ONA”) – sought to maintain its long-standing policy of terminating members’ LTD benefits once they reached age 65. This policy was permitted under the OHRC and ESA through the carve-outs to the general protection against age-based discrimination which were established after the repeal of mandatory retirement in Ontario in 2005. Read together, the carve-outs permit the differential treatment of employees aged 65 and older in the provision of benefits. The ONA argued that the carve-outs were contrary to section 15 of the Charter, which protects individuals from discrimination based on a variety of characteristics – including age.
For the purposes of the arbitration, the parties agreed on a without prejudice basis that the carve-out presumptively violated s. 15 of the Charter. However, after an in-depth analysis, the arbitrator concluded that the provisions were saved under s. 1 of the Charter, which imposes reasonable limits on Charter rights.
The arbitrator indicated that Ontario’s 2005 repeal of the permissibility of mandatory retirement at age 65 led the legislature to seek to balance several competing interests. In particular, the carve-out of age-related discrimination protections was meant to preserve the long-term viability of insurance schemes while permitting workers over the age of 65 to continue employment. Without this carve-out, LTD insurance schemes might become considerably more expensive since workers are much more likely to make LTD claims as they become older.
In addition, the arbitrator noted that the carve-out did not result in the total exclusion of workers over age 65 from protection against age-related discrimination and was instead reasonably tailored to meet its legislative objectives. Further, the carve-out preserved the right of employees to collectively bargain for post-65 LTD benefits if they wished to. Finally, the arbitrator noted that only a few union members would work past age 65, after which they would be in receipt of pension benefits that would adequately replace their LTD benefits.
Click the link below to read the arbitrator’s decision:
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