Ontario’s workers’ compensation system terminates Loss of Earnings benefits for injured workers at age 65, regardless of whether they planned to continue working, according to a report released by the Injured Workers Community Legal Clinic and the Ontario Network of Injured Workers’ Groups.
The Workplace Safety and Insurance Act cuts off LOE benefits when workers turn 65 or two years after injury if the worker was 63 or older at the time of the workplace incident. The law also ends re-employment obligations for employers when workers reach 65.
The advocacy groups argue the age-based cut-off no longer reflects workforce realities. In 2024, more than 421,000 people over age 65 were employed in Ontario, including nearly 164,000 workers over 70, according to the report.
Constitutional concerns raised
The groups contend the cut-off violates Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees equal protection without age-based discrimination.
“This law punishes people simply for being older,” said John McKinnon, executive director of Injured Workers Community Legal Clinic. “The WSIB assumes a one-size-fits-all approach, which is unfair, arbitrary, and we believe it violates workers’ equality rights under section 15 of the Canadian Charter of Rights and Freedoms.”
A 2014 Ontario Superior Court decision in Gouthro v. WSIAT upheld the age limit, ruling it was based on labour market data showing few people over 65 were working at the time. The court said the cut-off served to maintain financial sustainability of the workers’ compensation system.
Historic context and current data
The WSIB adopted the age 65 cut-off in 1990 when it replaced lifetime pensions with a wage-loss system. At that time, mandatory retirement at 65 was legal and common in Ontario.
Ontario banned mandatory retirement in 2006 through Bill 211, but included a clause allowing the WSIB to maintain age-based limits. The Ontario Human Rights Commission objected at the time, warning the limits were discriminatory and could violate the Charter.
The number of workplace injury claims from workers 63 and older has increased 279 per cent over three decades, from 4,430 claims in 1994 to 16,784 claims in 2024, according to freedom of information data obtained from the WSIB. This age group now represents 7.1 per cent of all claims, up from 1.2 per cent in 1994.
Canada’s median retirement age exceeded 65 for the first time in 2024, compared to 61.4 years in 2004, according to Statistics Canada data cited in the report. A 2024 Statistics Canada report found 21 per cent of Canadians aged 65 to 74 were employed in 2022, with 9 per cent working by necessity and 12 per cent by choice.
Case examples documented
The report includes accounts from three workers affected by the age cut-off.
Allen, a maintenance worker, injured his left knee at age 52 in 2009. He returned to work prematurely in August 2022 because his LOE benefits were set to expire when he turned 65 in September 2022. Following another surgery in January 2025, the WSIB covered his healthcare costs but denied LOE benefits because he was over 65, according to the report.
Brian, a mason, suffered bilateral ankle and foot injuries at age 63 in July 2021 after falling 2.5 metres from a scaffold. The WSIB terminated his LOE benefits and retraining program in July 2023, two years after the injury, while he was still in a return-to-work program. He has been without employment income since then, according to the report.
Juan, a bus operator, sustained a psychological injury at age 63 in May 2022 after being assaulted while protecting a passenger. The WSIB cut off his LOE benefits in May 2024 while he was gradually increasing his hours in a return-to-work program. He lost income from May to October 2024 and borrowed money from family to cover basic expenses, according to the report.
Provincial comparisons outlined
British Columbia and Alberta allow workers to provide evidence they planned to work past 65 and extend benefits accordingly, according to the report.
In British Columbia, workers injured before age 63 can receive wage-loss benefits until the later of age 65 or their intended retirement date. Workers injured at 63 or older can receive benefits for two years or until their intended retirement date.
Alberta defines normal retirement age as 65 or five years after injury, whichever is later. Workers can present evidence showing they planned to continue working past normal retirement age.
Proposed legislative changes
The advocacy groups are calling for amendments to the Workplace Safety and Insurance Act to end compensation for loss of earnings at the later of age 70 for workers injured before age 65, five years after injury for workers injured at 65 or older, or another date if the WSIB determines the worker would have retired later.
“Ontario’s workers’ compensation system was built on a promise: if you’re hurt at work, you will be supported. But that promise disappears at 65,” said Wayne Harris, executive vice-president of the Ontario Network of Injured Workers’ Groups. “We are asking the government to fix this injustice so older workers can live with dignity and security.”
The groups recommend any changes be retroactive to December 2006 when mandatory retirement was abolished in Ontario.
Financial position of WSIB
The WSIB has maintained a sufficiency ratio above 100 per cent since 2018, indicating it has enough funds to cover future expected benefit payments, according to the report. Average employer premium rates per $100 of insurable earnings dropped from $2.35 in 2018 to $1.23 in 2026, described as the lowest level in 50 years.
The provincial government has announced three multi-billion-dollar distributions to employers over the past 12 months due to the Board’s surplus, according to the report.
See the Rights Don’t Retire report here.
