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AGE DISCRIMINATION INTERNATIONALLY

CANADA

 

Heenan Blaikie

 

 

Mathews Dinsdale

www.mathewsdinsdale.com

Overview

All jurisdictions in Canada – ten provinces and three territories – have legislation designed to ensure the equality of its peoples.  Additionally, the federal government legislates in respect of industries considered to be federal undertakings.

Canada’s provisions prohibiting age discrimination are grounded in the Charter of Rights and Freedoms (“Charter”), which applies to all jurisdictions and governmental entities.  Section 15(1) of the Charter contains an equality clause, which provides as follows:

  • Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (emphasis added).

The federal government and all provinces and territories have anti-discriminatory measures against age.  Specifically, each jurisdiction has a human rights statute which prohibits discrimination on the basis of age.

Who's covered?

The ban on discrimination by age refers to a person 18 years of age or over in Alberta, Ontario, and Saskatchewan: and 19 years of age or over in British Columbia.  Canada’s other jurisdictions are not age specific.

For example, section 5(1) of the Ontario Human Rights Code (“the Code”) prohibits discrimination in employment:

  • Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability (emphasis added).

Age is defined in the Code as meaning an age that is 18 years or more.  Prior to 2006, the definition did not apply to persons over sixty-five years of age.  This amendment had the effect of strictly limiting the use of mandatory retirement policies, as will be discussed further below.

The section prohibiting discrimination in employment broadly applies to “every person”.  This means it applies equally to anybody in an employment relationship (i.e. employees; temporary, casual and contract staff; volunteers and unpaid workers; probationary employees; medical and personal attendants; union members; and non-employees).

What enforcement/remedies exist?

The enforcement mechanisms and remedies differ depending on jurisdiction.  Some jurisdictions (i.e. Alberta; Manitoba; Nova Scotia) allow complaints to a Human Rights Commission, which will investigate the alleged incident of age discrimination and determine whether to refer the complaint to an adjudicative process.  Other jurisdictions (i.e. British Columbia; Ontario) allow an employee to apply directly to the administrative tribunal which will accept, screen, mediate and adjudicate the complaint.

A person can also allege discrimination on the basis of age in a civil claim.  Often, age discrimination claims are pleaded with other actions, such as claims for wrongful dismissal.  The party will seek additional damages for the age discrimination as part of the civil claim.

We have summarised the enforcement mechanisms and remedies in Ontario below.

Any person alleging discrimination in Ontario can file an Application with the Ontario Human Rights Tribunal (“HRTO”).  Applicants have one year from the date of the last discriminatory incident to submit an Application.

The HRTO can award the following remedies:

Monetary Compensation

  • Money that the applicant has lost or been forced to spend because of the discrimination.  This is known as “special damages” (i.e. lost wages and benefits).
  • Injury to dignity, feelings and self-respect as a result of the discrimination.  This is known as “general damages” and typically ranges from $500 to $15,000.

Non-Monetary Remedies

The HRTO can order the employer to do something that will put the applicant in the position he/she would have been in if the discrimination had no occurred.  For example, the HRTO can order:

  • Reinstatement (if the Applicant lost his/her job because of the discrimination);
  • A promotion;
  • An offer of employment;
  • The removal of a harasser from the work environment;
  • Letters of assurance of future compliance with the Code; or
  • A letter of reference

Remedy for Future Compliance with the Code

A remedy for future compliance with the Code is an action that the employer can be ordered to take to prevent similar discrimination from happening in the future.  For example, the HRTO can order an employer to:

  • Change hiring practices;
  • Develop non-discriminatory policies and procedures;
  • Develop internal human rights complaint procedures;
  • Implement pro-active measures;
  • Implement education and training programs;
  • Publish an extract of the decision in the corporate newsletter; and/or
  • Post the Code in the workplace

How common are claims?

77% of the claims received by the HRTO allege discrimination in employment.

Of those, the percentage of claims alleging discrimination on the basis of age are as follows:

  • 15% in 2012-2013;
  • 14% in 2011-2012; and
  • 15% in 2010-2011

These statistics suggest that the percentage of claims on the basis of age discrimination has remained consistent.

What are the trickiest issues for employers?

The Ontario Human Rights Commission’s Policy on discrimination against older people because of age highlights some of the trickiest issues for employers when managing older employees.

Hiring

Older workers face barriers in finding employment.  These barriers can take the form of overt discrimination, such as not hiring somebody simply because of his/her age, or more subtle or systemic discrimination, such as eliminating someone because of a perception that he/she lacks “career potential”.

Employers must be careful to ensure that:

  • Job advertisements make no direct or indirect references to age;
  • Application forms should not ask questions relating to age; and
  • Questions about age should be avoided during interviews

On the Job

Examples of unequal treatment because of age on the job include, but are not limited to:

  • Limiting or withholding employment opportunities including transfer, promotion and training opportunities;
  • Not assigning an older worker to certain tasks or projecting or subjecting an older worker to an unwanted transfer because of age;
  • Performance management of older workers in a different way than other workers (i.e. subjecting performance to a higher level of scrutiny); and
  • Not recalling someone from lay-off because of age

In accommodating older employees, employers may want to consider the following arrangements:

  • Flexible hours and conditions of work (i.e. compressed work weeks; flex time; tele-working);
  • Part-time arrangements and job sharing; and/or
  • Employing workers who have chosen to retire on short-term contracts or as consultants

Are there any specific exceptions in your law?

All jurisdictions allow persons to be terminated or refused employment on the basis of age where employers can show a limitation with respect to age that is based on a bona fide occupational requirement (“BFOR”).  In addition, the anti-discriminatory measures against age do not apply to bona fide retirement, pension or insurance plans.

For example, the Canadian Human Rights Commission has examined whether a policy forcing pilots to retire at the age of 60 was discriminatory.  It held that this policy was a BFOR.

Retirement ages

As discussed above, mandatory retirement is prohibited by Canada’s human rights laws.

This does not mean that employers cannot have retirement programs based on a certain age.  Rather, it means that such programs cannot be mandatory.  The only exception is judges, masters and justices of the peace under the Courts of Justice Act, for whom there is a specific exemption under the code.

The British Columbia Court of Appeal has confirmed that mandatory retirement policies should be approached on a case-by-case basis with the employer baring the onus of establishing that its policy is justifiable in the circumstances of its workplace.

A recent decision of the Supreme Court of Canada examined mandatory retirement policies.  In McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39, John Michael McCormick, a Vancouver lawyer who refused to retire at the age of 65 as required by his firm’s mandatory retirement policy, alleged that he was discriminated against on the basis of age.  In dismissing the action, the Supreme Court emphasised McCormick’s independence and control over his working conditions and remuneration.  It concluded that he was not in a dependent relationship with the firm because as a partner he was in control of, rather than subject to, decisions governing the workplace.  This decision suggests that where mandatory retirement policies are pursuant to a partnership contract, they will be exempt from age discrimination laws.

Interesting cases

In Reiss v CCH Canada Ltd, 2013 HRTO 764, the applicant was a 60 year old lawyer who applied for a job as a commercial legal writer.  The applicant omitted information from his application, such as the year he was called to the bar, to avoid highlighting his age.  The employer testified that the missing dates were of concern and as a result, put the application on hold.  An agent of the employer told the applicant that his application was rejected, and that there were looking for someone “more junior in their experiences”.  The HRTO found that it can be reasonable inferred that this agent had formed the opinion that the applicant was not a suitable candidate, based on a stereotypical view about the applicant, based in part on the applicant’s age.  The HRTO ordered the employer to pay the applicant $5,000 as compensation for injury to his dignity, feelings and self-respect.

In MacKinnon v Celtech Plastics Ltd, 2012 HRTO 2372, the applicant was 67 years old with 35 years of employment.  He was recalled from lay-off and was subjected to an unusually heavy workload at unreasonably high standards.  The applicant alleged that the motivation behind these actions was to make work so unpleasant that he would quit.  He further alleged that the employer would save money by replacing him with less-experienced workers that would be paid a lower salary, and that the employer would avoid the requirement to provide severance pay.  The HRTO awarded $27,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity.

In Favuzzi v 1140782 o/a Weedman, 2012 HRTO 2253, the applicant was a 45 year old recent college grad, who has been hired by Weedman.  However, after working for only about five days, he was terminated and told that his termination was due to his older age.  The applicant contacted the employer and requested to be reinstated, telling the employer that age discrimination is illegal.  The HRTO found that the employer made the decision to dismiss the applicant party because of his age.  It further found that the repeated references to age as the reason for his termination strongly suggested that age played some part in the termination, especially since the applicant was told he was performing well.  The applicant received $1,000 for injury to dignity, feelings and self-respect, as well as $1,640, as damages for lost wages.