Know The Laws Of Your Province: Licence for Benefits Plans to Commit Age Discrimination

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Although mandatory retirement and other forms of age discrimination are illegal, the human rights laws of most jurisdictions include a so called “savings clause” in their human rights legislation that essentially gives employee benefit plans licence to discriminate on the basis of age—as well as other protected grounds such as marital status. The catch: The plan must be “bona fide.” The types of plans and forms of discrimination covered by the rule vary by province depending on what the savings clause actually says. Here’s a nationwide roundup.

SCOPE OF BONA FIDE PLAN EXEMPTION

FEDERAL: a. Ban on employment discrimination doesn’t apply to provisions in a pension or insurance fund or plan that are expressly listed in the regulations as not being discriminatory   [Canadian Human Rights Act, Sec. 22]; and b. The list of such provisions is contained in the Canadian Human Rights Benefit Regs. which sets out in detail the participation, benefit and contribution rules and practices that pension, disability, health, life and other insurance and benefit plans and funds can adopt without committing discrimination.

ALBERTA: Ban on age and marital status discrimination doesn’t affect “operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan” [Human Rights Act, Sec. 7(2)].

BRITISH COLUMBIA: Ban on age, marital status, physical or mental disability or sex discrimination doesn’t apply to the “operation of a bona fide retirement, superannuation or pension plan or a bona fide group or employee insurance plan,” regardless of whether the is the subject of an insurance contract between the employer and an insurer [Human Rights Code, Sec. 13(3)(b)].

MANITOBA: a. Ban on employment discrimination doesn’t prevent employee benefit plans from making bona fide and reasonable distinctions, conditions, requirements or qualifications; b. Government may make regulations setting out which distinctions , conditions, requirements or qualifications set by employee benefit plans are bona fide and reasonable , whether provided for by individual contract, collective agreement or otherwise [Human Rights Code, Sec. 14(7)].

NEW BRUNSWICK: Ban on age discrimination doesn’t apply to: i. “termination of employment or a refusal to employ because of the terms or conditions of any bona fide retirement or pension plan;” ii. operation of the terms and conditions of a bona fide retirement or pension plan that have the effect of a minimum service requirement; or iii. operation of the terms and conditions of a bona fide group or employee insurance plan [Human Rights Act, Sec. 4(6)].

NEWFOUNDLAND/LABRADOR: a. Ban on age discrimination doesn’t apply to: i. prevent the operation of a good faith retirement or pension plan; ii. operation of the terms and conditions of a good faith retirement or pension plan that have the effect of a minimum service requirement; or iii. operation of the terms and conditions of a good faith group or employee insurance plan; b. Stipulates that the first exemption (subpara. i above) doesn’t apply to a good faith retirement or pension plan requiring  a person to retire at an age designated in the plan [Human Rights Code, Sec. 14(6) and (7)].

NORTHWEST TERRITORIES: Ban on age, marital status and family status discrimination doesn’t affect the operation of any bona fide retirement or pension plan or the terms and conditions of any bona fide group or employee insurance plan [Human Rights Act, Sec. 7(2)].

NUNAVUT: Ban on age, marital status and family status discrimination doesn’t affect the operation of any genuine retirement or pension plan or the terms and conditions of any genuine group or employee insurance plan [Human Rights Act, Sec. 9(2)].

NOVA SCOTIA: Ban on employment discrimination doesn’t apply to prevent, on account of age, the operation of a bona fide pension plan or the terms or conditions of a bona fide group or employee insurance plan” [Human Rights Act, Sec. 6(g)].

ONTARIO: a. It IS discrimination to deny or make employment conditional based on enrollment in an employee benefit, pension or superannuation plan or fund or a group insurance contract between the employer and an insurer that makes distinctions, preferences or exclusions on the basis of age or other grounds protected by the Code; b. It does NOT violate the ban on sex, marital status or family status discrimination when [a discriminatory term or condition is in connection with the operation of] an employee superannuation or pension plan or fund or a group insurance contract between the employer and an insurer that complies with ESA requirements; c. It does NOT violate the ban on age discrimination when [a discriminatory term or condition is in connection with the operation of] employee benefit, pension, superannuation or group insurance plan or fund that complies with ESA requirements regardless of whether the plan or fund is the subject of an insurance contract between the employer and insurer [Human Rights Code, Sec. 25]; and d. “Group insurance” defined as insurance in which the lives and well-being of a number of persons are collectively insured under a single contract between an insurer and an employer, association or other person [Sec. 10(1)].

PRINCE EDWARD ISLAND: Ban on age and disability discrimination doesn’t affect operation of any genuine retirement or pension plan or any genuine group or employee insurance plan”[Human Rights Act, Sec. 11].

QUÉBEC: a. A distinction, exclusion or preference distinction based on age, sex or civil status in an insurance or pension contract, social benefits plan or public pension or public insurance plan is presumed NOT discrimination if its use is “warranted and the basis therefor is a risk determination factor based on actuarial data”; and b. Use of health as a risk determination factor in such contracts or plan is NOT discrimination [Charter of Human Rights and Freedoms, Sec. 20.1].

SASKATCHEWAN: Ban on age discrimination doesn’t prohibit operation of any term of a bona fide retirement, superannuation or pension plan, or any terms or conditions of any bona fide group or employee insurance plan [Saskatchewan Human Rights Code, Sec. 16(4)].

YUKON: Includes no bona fide plan exception