This summary of age discrimination in Canada has been prepared by Mathews Dinsdale, the Ius Laboris member for Canada: Mathews Dinsdale & Clark LLP

Overview

In every province and territory in Canada, human rights legislation prohibits discrimination in the employment context based on various protected grounds, including age. Separate legislation prohibits age discrimination for federally regulated employers. While each jurisdiction has different processes, exemptions, and remedies that apply to age discrimination, each piece of human rights legislation aims to protect employees from discrimination based on age..

Who's covered?

While no jurisdiction places a maximum age threshold on age discrimination protections, there are minimum age thresholds.

In British Columbia, age discrimination protections trigger if the applicant or employee is 19 years of age or older. Alberta, Saskatchewan, and Ontario protections will trigger if the employee or applicant is 18 years of age or older.

In Manitoba and New Brunswick, the minimum age threshold is the age of majority, which is 18 and 19 years of age, respectfully.

Other Canadian jurisdictions do not define age.

eSTABLISHING AGE DISCRIMINATION

When assessing whether age-based distinctions amount to unlawful discrimination, the applicant or employee must establish that they have:

·        a characteristic protected from discrimination, which in this case would be age;

·        experienced an adverse impact or treatment; and

·        the employee’s age was a factor in the adverse impact.

The employer can defend themselves by demonstrating that:

·        the employee did not experience any adverse treatment;

·        the adverse treatment was not influenced in any way by the employee’s age (e.g. the employee’s discipline or termination was wholly related to the employee’s performance);

·        the adverse treatment falls within an exemption in the applicable human rights statute; or

·        the adverse treatment was based upon a bona fide occupational requirement (“BFOR”).

remedies

If an employer is found to have discriminated against an employee based on age and none of the defences noted above apply, an employer may attract damages for injury to the employee’s dignity, feelings, and self-respect, also known as general damages, as well as being required to pay for lost wages and benefits. Non-monetary remedies may include reinstatement, a promotion, letters of assurance for future compliance, and/or a letter of reference, amongst others.

sTATUTORY EXEMPTIONS

Statutory exemptions to age discrimination differ depending on the jurisdiction, however, the most common include:

  • ·a BFOR, meaning the workplace rule or standard that was applied to the employee, with an adverse result, is reasonably necessary for the performance of the job;

  • minimum age employment limits set by other legislation (such as minimum standards legislation, health and safety legislation, liquor control legislation, etc.);

  • exemptions found in other legislation;

  • ·bona fide retirement plans or pension plans; and

  • · bona fide group insurance plans.

BFORS

Employers may be permitted to implement certain policies or practices that negatively or disproportionately impact older employees, as long as they can demonstrate that the policy or practice is based on a BFOR. For example, an employer may require a certain level of physical fitness for an employee engaged in manual labour.

For a BFOR to be valid, the employer must clearly demonstrate that the standard was:

  • ·adopted for a purpose rationally connected to the performance of the job;

  • ·adopted in an honest and good faith belief that it was necessary to fulfill the legitimate work-related purpose; and

  • ·reasonably necessary to accomplish the legitimate work-related purpose.

Additionally, employers have a duty to accommodate employees to the point of undue hardship, which means they must make reasonable efforts to accommodate an employee’s needs related to age. This may include, but is not limited to: flexible work arrangements, frequent breaks, adjusting the work place, and/or training.

hiring

Age discrimination may arise as early as the recruitment process.

Generally, employers should not:

  • ·post job advertisements that directly or indirectly indicate age as a qualification; or

  • ·ask questions during the recruitment process about an employee’s age (e.g., birth date, photo ID, etc.).

Employers should be aware that over-qualification and age discrimination may be tied together, but they are not the same thing. Evidence that an employer refused to hire someone because they are overqualified is not the same as evidence of refusing to hire someone because they are too old.

Similarly, not offering employment to the most experienced candidate does not necessarily mean age discrimination has occurred. There may also be genuine non-discriminatory reasons for not hiring the candidate.  

JOB PERFORMANCE

Subjecting an employee to a performance improvement plan and, if necessary, terminating their employment due to poor performance, does not constitute age discrimination as long as performance issues are assessed using objective non-discriminatory standards. However, if the standards used are arbitrary or clearly unattainable, or deviate from standard practices, it may suggest that age was a factor in the treatment of the employee.

It is important to be aware that failure to address performance deficiencies because of an expectation that the employee will soon retire may also form the basis of an age discrimination claim.

In Ouellette v IBM Canada Limited, 2017 HRTO 391, an employee claimed his employment was terminated in part based on his age. The employee was dismissed shortly after the employer hired a younger employee in a similar position to that occupied by the employee alleging age discrimination. The Human Rights Tribunal of Ontario (“HRTO”) found that the older employee failed to establish a link between his age and the termination of his employment. Instead, the HRTO determined that the employee was dismissed due to performance issues. The temporal connection between the younger employee’s hiring and the older employee’s dismissal was not enough to establish discrimination and the employer provided credible evidence that there were issues with the older employee’s performance.

PENSIONS PLANS

While specific language pertaining to exemptions varies between jurisdictions, human rights legislation in all Canadian jurisdictions except the Yukon, Manitoba, Nunavut, Ontario, and Quebec expressly exempt bona fide pension plans from age-based discrimination claims.

In jurisdictions where there is no specific exemption for a bona fide pension plan, another statutory exemption standard is typically applied. Most commonly, these jurisdictions will have one of the following exemptions:

·        There is a reasonableness standard for the discrimination; or

·        Discrimination on the basis of age in pension plans is permissible under other legislation.

The statutory exemption for a bona fide pension plan was used as a successful defence in Kynoch v Board of Education of School District No. 58 (Nicola-Similkameen). In the decision, the age of pension eligibility under the municipal pension plan (65 years old) was used as a basis to restrict payout of accumulated sick leave for an employee who retired/resigned at the age of 50. Only employees within 10 years of pension eligibility (e.g., 55 years old or older) were eligible for accumulated sick leave payout. 

group insurance benefits

Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, and Saskatchewan have statutory exemptions from age discrimination claims for the operation of bona fide employee or group insurance plans. In other jurisdictions, different statutory exemptions relating to employee or group insurance plans apply. For example, in Ontario, an exemption applies if the group insurance plan complies with the Employment Standards Act, 2000 and its regulations.

mandatory vs. voluntary retirement

Mandatory retirement is prohibited by human rights legislation unless it is required under separate legislation, is a component of a bona fide pension plan, or it is a BFOR.

Employers may implement a retirement policy that is tied to a specific age, provided retirement is, and remains, a voluntary choice, and the policy complies with the statutory exemption for retirement plans, such as a minimum age requirement in a voluntary early retirement program.

Merely reaching the retirement-eligible age does not grant the employer the right to encourage or coerce an employee into retirement, nor can they compel the employee to disclose their retirement plans.

However, it is not necessarily discriminatory to treat the employee differently once an employee has announced a retirement date. For example, it is reasonable and appropriate for the employer to:

  • consider the intended retirement in its workplace planning; and

  • decline access to training that may produce limited advantages, given the employee’s impending retirement.

However, this should be reviewed cautiously.

TAKEAWAYS AND CONCLUDING REMARKs

Although employers have the right to oversee and manage their workforce, including making decisions regarding hiring, monitoring performance, and establishing performance standards, training and development, and downsizing its workforce, they may face allegations of discrimination if their decisions are based, in whole or in part, on the applicant’s or employee's age.

Please be reminded that rules and regulations differ across jurisdictions. Most importantly, depending upon the jurisdiction, certain exemptions and restrictions may or may not be permitted. We encourage employers to review their existing practices, policies, and procedures to ensure they align with their applicable legislation, and if you have any questions regarding this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.