Heenan Blaikie
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Caveat: As a federal jurisdiction, Canada's ten provinces and three territories do not have identical age discrimination laws. Additionally, the federal government legislates in respect of industries considered to be federal undertakings.
The following information applies solely to Ontario, Canada's most populous province. While other Canadian provinces are becoming increasingly important economically, Ontario remains Canada's economic engine, with Toronto as the country's financial capital.
Overview
The Canadian Charter of Rights and Freedoms (‘Charter’) applies to the federal Parliament, provincial legislatures, and all governmental entities. The Charter contains an ‘equality’ clause at s. 15(1) prohibiting discrimination based on age:
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.
In addition, private sector employers in Ontario are subject to the provincial Human Rights Code (‘Code’)[1] which enumerates age as a protected ground. Sections 1, 2(1), 3, 5(1) and 6 of the Code guarantee every person the right to equal treatment with respect to services, goods and facilities, the occupancy of accommodation, the right to contract, employment and membership in any trade union:
without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
Ontario amended its definition of age on December 12, 2006.[2] The previous definition was:
‘age’ means an age that is eighteen years or more, except in subsection 5(1) where ‘age’ means an age that is eighteen years or more and less than sixty-five years.
The revised definition of age is:
‘age’ means an age that is 18 years or more.
The definition of age has, therefore, been expanded to prohibit discrimination against employees over the age of sixty-five. As discussed below, this has the effect of strictly limiting the use of mandatory retirement policies in Ontario.
Who is covered?
The Code protects every person over the age of eighteen against discrimination based on their age. Additionally, persons in Ontario aged sixteen or seventeen who have withdrawn from parental control have ‘a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old.’[3]
What enforcement/remedies exist?
Anyone who alleges a human rights violation can file an application directly with the Ontario Human Rights Tribunal, which will gather facts, inquire into relevant issues, and make final and binding orders. Applicants have one year from the date the discrimination took place to commence a proceeding. The Tribunal can make monetary orders to compensate for damages such as expenses, lost income, or mental distress, but can also make non-monetary orders such as reinstatement of an employee who was terminated from employment in violation of the Code, or order an employer to implement certain policies.[4] There is no maximum on the amount of damages that may be ordered.
A Human Rights Legal Support Centre, created in 2008, provides legal advice to complainants who have made an application to the Tribunal.[5]
Breaches of human rights can also be adjudicated by civil courts if they are pleaded together with another action such as a claim for wrongful dismissal.[6]
How common are claims?
Most age discrimination claims have dealt with mandatory retirement. As of December 12, 2006, such policies are no longer automatically exempted from the Code. Data from the Commission for 2007 and 2008 indicates that age was cited in approximately 10% of employment-related complaints filed.
What claims are most common and what are trickiest issues for employers?
Avoiding age discrimination at the hiring stage can be complex for an employer. Employers should avoid exchanges of information that might lead the Tribunal to suspect that a potential employee was not hired due to age. In Lannin v. Ontario (Ministry of Solicitor General) and O’Brien v. Ontario Hydro, discussed below, the complainants were successful in their claims that they had been discriminated against in hiring on the basis of age.
Claims of age discrimination may also arise when older employees are terminated. Employees may seek to advance these allegations in wrongful dismissal litigation as a way to increase their damage award, or possibly even to seek reinstatement, which is not available as a remedy in a wrongful dismissal action unless there has been a breach of the Code.
Are there any specific exceptions in your laws?
Employment-related discrimination on the basis of age will be permitted in certain circumstances, including if the age discrimination can be justified on grounds of a ‘bona fide occupational requirement’. This is an extremely difficult standard for employers to meet.
Further exceptions to the general prohibition against age discrimination can be found in the Workplace Safety and Insurance Act[7], which permits certain distinctions based on age (for instance, the ability of employers to escape rehiring obligations when injured workers turn sixty-five). In addition, the Employment Standards Act, 2000[8] enables the continuation of disability, insurance and health benefits to employees over sixty-five to be at the employer's discretion.
Because s. 15(1) of the Charter prohibits governments from discriminating on the basis of age, these exceptions in provincial legislation may be challenged over the next few years.
Retirement ages
Since December 2006, employers in Ontario have no longer been able to discriminate in employment on the basis of age. As a result, in Ontario it is not permissible for an employer to require an employee to retire at a certain age unless an employee’s age constitutes a ‘bona fide occupational requirement’.
Interesting cases
In O'Brien v. Ontario Hydro[9] the Board of Inquiry (now known as the Tribunal) held that an employer had discriminated against an individual by discouraging him from applying for a job as an apprentice electrician because he was too old. The Board held that the employer's practice of preferring apprentices to be young was discriminatory.
In Lannin v. Ontario (Ministry of the Solicitor General)[10] a Board of Inquiry ordered a government agency to pay the complainant $2,000 as compensation for its discriminatory inquiries during the hiring process. The complainant was asked inappropriate questions, including her age, during an interview for a job as a stenographer at a police station.
In Van der Linde v. J.A. Wilson Display Ltd.[11] the Board of Inquiry held that it is sufficient to prove discrimination if a prohibited ground is merely one factor in the mind of the employer when dismissing a potential employee's application. The test is whether, on a balance of probabilities, age is an operative factor in the decision not to hire an individual.
In McKee v. Hayes-Dana Inc.[12] an employer was found to have discriminated against the complainant whose employment was terminated during a downsizing. An internal memo written by the Vice-President of the company said that they “hoped to keep people with career potential” rather than downsizing by seniority as had been done in the past.
[1] R.S.O. 1990, c. H.19. [‘the Code’].
[2] The Ending Mandatory Retirement Statute Law Amendment Act, 2005, S.O. 2005, c. 29, s. 1 (1).
[3] Supra note 1 at s. 4(1).
[4] Supra at s. 45.2(1).
[5] Supra at s. 45.11 to s. 45.18.
[6] Supra at s. 46.1(1).
[7] S.O. 1997, Ch. 16.
[8] S.O. 2000, Ch. 41.
[9] (1981), 2 C.H.R.R. D/504 (Ont. Bd. of Inquiry).
[10] (1993), 26 C.C.H.R. D/58 (Ont. Bd. of Inquiry).
[11] (1982), 3 C.H.R.R. D/685 (Ont. Bd. of Inquiry).
[12] (1992), 17 C.H.R.R. D/79 (Ont. Bd. of Inquiry).