There are six sections in the Code that have implications for the insurance industry (see Appendix). Section 3 prohibits discrimination in contracts, which would therefore prohibit discrimination in insurance contracts.
Section 5 prohibits discrimination in employment which would include employee benefit plans that relate to insurance.
Section 10 defines the term "group insurance" as a single contract of life insurance or life and disability insurance which insures a number of persons. The contract is between an insurer and an association, employer or other person.
Section 11 prohibits discrimination resulting from the use of a general rule or condition that, although applied to all individuals, might have an indirect or adverse impact on individuals identified by a prohibited ground.
Finally, there are four insurance-related defences (or exemptions) available to respondents under sections 22 and 25 of the Code. The Board of Inquiry in Thornton accepted that the Code sets out the following hierarchy of defences, each with an increasing number of pre-conditions:
- Section 25(2) provides that employee pension or group insurance plans based on age, sex, marital status or family status do not offend the Code if they comply with the regulations under the Employment Standards Act.
- Section 22 provides that automobile; life; accident, sickness or disability insurance; group insurance; or life annuity policies, not part of an employment situation, may make distinctions based on age, sex, marital and family status, or handicap, but these distinctions must be made on reasonable and bona fide grounds.
- Section 25(3)(b) provides that group insurance plans for employee groups with fewer than 25 members may make distinctions based on disability, provided that the distinction is reasonable and bona fide and made on the ground of a pre-existing handicap.
- Section 25(3)(a) provides that other employee disability or life insurance contracts may make distinctions based on disability provided the distinction is reasonable and bona fide and based on a pre-existing handicap that substantially increases the risk.
Thornton v. North American Life Assurance Co. (No.5) (1992), 17 C.H.R.R. D481 (Ont. B.O.I)