Canada – agediscrimination.info

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 industries considered to be federal undertakings.

The following information applies solely to Ontario, Canada’s largest 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 certain federally regulated employers in Ontario. The Charter contains an “equality” clause at section 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. [Emphasis added]

In addition to the Charter’s application, every employer in Ontario is 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. [Emphasis added]

Ontario has recently amended its definition of age, effective 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 ending mandatory retirement 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 Additionally, persons in Ontario aged sixteen or seventeen who have withdrawn from parental control have “a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person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?

Currently, the Code empowers the Ontario Human Rights Commission (”the Commission”) to investigate any complaint of a person who believes that his or her rights under the Code have been infringed. The Commission may then refer the complaint to the Ontario Human Rights Tribunal (”the Tribunal”), which determines whether or not the individual’s rights under the Code have been infringed.[4] The Tribunal may then direct the party that has contravened the Code to “do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance” and may “direct the party to make restitution … not exceeding $10,000, for mental anguish.”[5]

However, the current system is likely to change with the Human Rights Code Amendment Act, 2006,[6] which will likely become law within the upcoming year. This Act proposes a “direct access” human rights model whereby complaints will be filed directly with the Tribunal, thus obviating the need for the Commission. Under the proposed system, there will be fewer incentives to settle complaints and damages awards will likely increase, as the existing $10,000 limit on awards for mental anguish will be removed.

How common are claims?

Most age discrimination claims have dealt with mandatory retirement, which effective December 12, 2006 will no longer be permissible in Ontario. Data from the Commission indicates that between 1999 to 2001, age was cited in approximately 8% of the nearly 4000 complaints filed with the commission.

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. For example, what questions can employers ask of potential employees during the hiring interview? What exchanges of information might lead the Tribunal to suspect that a potential employee was not hired due to age? These issues were considered in O’Brien v. Ontario Hydro and Lannin v. Ontario, discussed below.

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 workers over sixty-five are injured). In addition, the Employment Standards Act, 2000[8] which enables the continuation of disability, insurance and health benefits to employees over sixty-five to be at the employer’s discretion.

Retirement ages

Effective December 12, 2006, employers in Ontario may no longer 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.

Interesting cases

The seminal age discrimination case at the federal level is McKinney v. University of Guelph,[9] decided by the Supreme Court of Canada in 1990. Several professors and a librarian employed by the University, a federal undertaking and therefore within the purview of the (federal) Charter, challenged the University’s policy of mandatory retirement at age sixty-five. They argued that the Human Rights Code, which at the time allowed such policies, violated their Charter right of equality. The Supreme Court of Canada upheld the University’s mandatory retirement policy and simultaneously upheld the constitutionality of the Code’s exemption of employees over sixty-five from its protections.

In O’Brien v. Ontario Hydro[10] 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. The Code prohibits refusal to employ on basis of age unless there is a bona fide occupational requirement.

In Lannin v. Ontario (Ministry of Solicitor General)[11] the 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.[12] 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.

[1] R.S.O. 1990, c. H.19. [”the Code”].

[2] S.O. 2005, c. 29, s. 1 (1).

[3] Supra note 1 at s. 4(1).

[4] Supra note 1 at s. 32-41.

[5] Supra note 1 at s. 41.

[6] 2nd Sess., 38th Legislature, 2006 (1st Reading).

[7] S.O. 1997, Ch. 16.

[8] S.O. 2000, Ch. 41.

[9] [1990] 3 S.C.R. 229.

[10] (1981), 2 C.H.R.R. D/504 (Ont. Bd. of Inquiry).

[11] (1993), 26 C.C.H.R. D/58 (Ont. Bd. of Inquiry).

[12] (1982), 3 C.H.R.R. D/685 (Ont. Bd. of Inquiry).