Part XIII - Benefit plans
Part XIII of the Employment Standards Act, 2000 is intended to prohibit age, sex and marital status discrimination in respect of: employees, beneficiaries of employees, survivors of employees and dependents of employees in employee benefit plans, except in certain specific instances as set out in O Reg 286/01.
Section 43 - Definition
This definition is substantially the same as the definition in s. 1 of O Reg 321 under the former Employment Standards Act.
The definition of employer in s. 43 is supplementary to the definition of "employer" in s. 1 of the Employment Standards Act, 2000. For the purposes of Part XIII, the definition in s. 43 also includes a group or association of unaffiliated employers that have combined for the purpose of providing a pension plan, a life insurance plan, a disability insurance plan, a disability benefit plan, a health insurance plan or a health benefit plan to the employers' employees. This practice is common, for example, in the construction industry.
Section 44 - Differentiation prohibited
Differentiation prohibited - s. 44(1)
Section 44(1) prohibits the employer from providing a benefit plan that differentiates between the employees (or their beneficiaries, survivors or dependants) on the basis of the age, sex or marital status of employees except as allowed in O Reg 286/01. The prohibition in this section applies to any employer or person acting directly on behalf of an employer. A "person acting directly on behalf of an employer" includes persons empowered to act on behalf of the employer such as agents.
It is important to note that differentiations in benefit plans based upon bona fide job classifications or length of service requirements may be violations of s. 44(1) if such differentiations affect persons because of the age, sex or marital status of an employee and if it would not be an undue hardship to the employer to remove the discriminatory provision. In other words, intent to discriminate is not necessary for a violation of s. 44(1) to occur. In this regard, see the Supreme Court of Canada decision in Ontario Human Rights Commission v Simpsons-Sears,  2 SCR 536, 1985 CanLII 18 (SCC) where an employer was found to have committed a breach of human rights legislation on the basis that a rule that it had imposed, while not intentionally discriminatory, had a discriminatory effect and its elimination would not cause "undue hardship" to the employer. In the employment standards context, for example, if all of an employer’s part-time employees are female, and part-time employees are excluded from a benefit plan, the reasoning in Ontario Human Rights Commission v Simpsons-Sears may require that the exclusion of part-time employees be eliminated.
1. Prohibited grounds of discrimination
Section 44(1) prohibits discrimination with respect to certain benefit plans on the basis of age, sex and marital status. The terms "age," "sex" and "marital status" are all defined in section 1 of O Reg 286/01 (although only for purposes of Part XIII and O Reg 286/01). For further discussion of these terms, please refer O Reg 286/01.
"Age" is defined in s. 1 of O Reg 286/01 as follows:
Therefore, if a plan discriminates against employees who are under 18, or 65 or over, it will not constitute discrimination on the basis of age within the meaning of Part XIII.
On December 12, 2006 amendments to the Human Rights Code, RSO 1990, c H.19 (the "Code") to eliminate, for most employees, mandatory retirement at age 65 or older, came into force. The definition of "age" in the Code which formerly excluded ages 65 and older, was amended to eliminate the upper limit, with the result that in general, discrimination against employees aged 65 or older is no longer permitted. However, the Code still provides (now in subsections 25(2.1) to 25(2.3)) that the right to equal treatment without discrimination on the basis of age is not infringed by benefit, pension, superannuation or group insurance plans or funds that comply with the ESA 2000 and its regulations. Subsection 25(2.3) specifically states that this is so even if the ESA 2000 or its regulations define "age" differently than the definition in the Code. As a result, discrimination on the basis of employee ages of 65 or over is permitted in benefit plans under the ESA 2000 because O Reg 286/01 defines age as any age 18 years or more and less than 65 years. In Chatham-Kent (Municipality) v Ontario Nurses Association (O’Brian) (Re) (2010), 202 LAC (4th) 1 (Etherington), the arbitrator was asked to determine whether these provisions violated s. 15(1) of the Charter of Rights and Freedoms (the "Charter") because they discriminate on the basis of age. Although the arbitrator concluded that they did indeed violate s. 15(1) of the Charter, he went on to find that they were saved by s. 1 of the Charter which states that rights otherwise protected under s. 15 are subject to "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
"Sex" is defined to include distinctions between employees because the employee "is or is not a head of household, principal or primary wage earner or other similar condition," and "a distinction between employees . . . because of the pregnancy of a female employee."
At one time, a distinction based on pregnancy was not generally considered sex discrimination. For example, in Bliss v Attorney General of Canada,  1 SCR 183, 1978 CanLII 25 (SCC), the Supreme Court of Canada held that unemployment insurance legislation providing special conditions for pregnant women did not constitute discrimination on the grounds of sex. As a result, the definition of "sex" in the predecessor to O Reg 286/01 was amended so as specifically to include a distinction based on pregnancy. The Bliss v Attorney General of Canada view was later overturned on the question of whether discriminatory treatment based on pregnancy constitutes discrimination on the basis of sex by the Supreme Court in Brooks v Canada Safeway Ltd.,  1 SCR 1219, 1989 CanLII 96 (SCC).
iii) Marital status
"Marital status" is defined in s. 1 of O Reg 286/01 as follows:
Under this inclusive definition, married employees (including employees married to a person of the same sex), unmarried employees supporting a dependent child or children, as defined in the plan, and employees with "common law" spouses will all be considered to have marital status. After the decision in Halpern v Canada (Attorney General), 2003 CanLII 26403 (ON CA), in which the Court of Appeal ruled that the exclusion of same sex couples from marriage was inconsistent with the equality guarantees in the Canadian Charter of Rights and Freedoms, was not saved under section 1 of the Charter ("reasonable limits") and was, therefore, unconstitutional, the Program took the view that "common law status as defined in the relevant benefit plan" must include same-sex as well as opposite-sex common law couples. (See also the discussion of the definition "spouse" in O Reg 286/01, s.1 in the Manual.) On June 13, 2005, clause (b) of the definition of "marital status" was amended so as to eliminate the words "of husband and wife", thereby reflecting Halpern v Canada (Attorney General) and the Program position. Any exemption from s. 44(1) in O Reg 286/01 for differentiations on the basis of marital status must be applied equally to all employees with marital status. Likewise, if there is no exemption in the regulation, then all persons with marital status (including employees married to or in a common-law relationship with a person of the same sex and including single employees with supporting a dependent child or children) must be treated equally.
2. Types of benefit plans covered
Part XIII and the prohibition against discrimination in s. 44 can apply to any type of benefit plan offered by an employer as defined in subsection 1(1) of the Act; benefit plans include those listed in s. 43 as well benefit plans such as supplementary unemployment benefits ("SUBS"), whether payable during periods of lay-off or as "top ups" for maternity and parental benefits, as well as deferred profit sharing plans. A deferred profit sharing plan need not be registered under the Income Tax Act, RSC 1985, c 1 (5th Supp) in order to be considered a benefit plan within the meaning of s. 44(1).
Note, however, that the definition of "employer" in s. 43, in addition to including employers as defined in subsection 1(1) of the Act, also includes a group of employers or an association acting for an employer in relation to certain types of benefit plans listed within s. 43. Thus, while the prohibition against discrimination in s. 44 applies in respect of any type of benefit plan provided, ordered or arranged for by an employer or person acting on behalf of an employer, the prohibition would apply in respect of a benefit plan offered by a group or association of employers only if it is a pension plan, life insurance plan or health benefit plan.
The use of the words "provide, offer or arrange" indicate that a plan will be covered by Part XIII whether or not employees are required to participate in it or make contributions to it. Thus, Part XIII will cover, among other plans, voluntary, "employee-pay-all" plans provided by an employer.
Section 44(1) applies to benefit plans without any distinction as to how the benefits are payable. For example, s. 44(1) may apply whether the benefits are payable periodically or as a lump sum. In addition a benefit plan described in s. 43 may be subject to the prohibition against discrimination in s. 44(1) even if there is no specific fund set up to provide the benefits. For example, "self-insured" company benefit plans, where the company pays for the benefits itself, rather than paying premiums to an insurance company, will be covered by Part XIII, even though the company has not set up a special segregated fund from which to pay these benefits. Part XIII would not cover an informal, "self-insured" pattern of responses such as where occasional days off with pay are provided on an ad hoc basis. However, once such a plan becomes formalized, i.e., using fixed criteria respecting who is eligible for benefits, it would come under Part XIII.
3. Persons protected from discrimination
Section 44(1) protects employees and their beneficiaries, survivors and dependants from discrimination under a benefit plan on the grounds of age, sex or marital status of the employees.
"Dependant" is the only one of these classes of persons defined in s. 1 of O Reg 286/01. It is defined as follows:
For further discussion of the term "dependant", please refer to O Reg 286/01, s. 1.
Causing contravention prohibited - s. 44(2)
This provision is substantially the same as s. 33(3) in the former Employment Standards Act. Section 44(2) prohibits an organization of employers or employees or a person acting on their behalf from causing or attempting to cause, in any way, an employer to contravene section 44(1), i.e., to discriminate in benefit plans on the basis of age, sex or marital status. For example, a union may be in violation of s. 44(1) if, during collective agreement negotiations, it seeks a benefit plan package that contains a provision contrary to s. 44(1).