While most people are aware that they have certain rights concerning their employment, such as the right to be paid at least minimum wage, to be paid overtime in certain circumstances and to be permitted to take breaks at certain times, fewer are aware of their entitlement to be free from discrimination. The right to be free from discrimination in the workplace has been codified across Canada in the form of federal, provincial and territorial Human Rights Code legislation.
Each province and territory of Canada has its own Human Rights Tribunal, which oversees the implementation of that province or territory’s Human Rights Code. Every such Code across Canada includes a right to be free from discrimination in various circumstances, including employment, on various bases, such as age, religion, disability and gender. As such, any person who experiences discrimination in their employment by any of the grounds enumerated in the applicable Code is entitled to seek to recover damages for the harm suffered via a complaint of discrimination before a human rights tribunal.
This blog will explore age discrimination in employment, including what constitutes it and what remedies may be provided to assuage the harm it causes.
New Hire Fired for Being “Too Old”
The recent Human Rights Tribunal of Ontario decision in Yanover v The Otter Guy Inc. illustrates age discrimination in employment. In this case, the applicant had been working for a particular water taxi company for more than 20 years when he was approached by the respondent employer, a competing water taxi company, with a job offer. The respondent incentivized the applicant to abandon his long-term employer and come to work for them by promising to pay him a higher salary than what his current employer paid him.
The applicant accepted the respondent’s offer on June 1, 2016, and immediately began working for the respondent. Approximately two years later, the applicant attended work only to be advised by the CEO of the respondent that “the company was going with younger people now.” Soon after hearing this vague statement, the applicant, who had continued to work on the dock, was approached by a police officer who asked what the applicant was doing on the premises, as he had been fired. The applicant then left the premises and never returned to work for the respondent, despite never receiving any notice or letter of termination nor payment of any severance or termination monies for the termination of his employment without cause.
The applicant subsequently filed a complaint of age discrimination with the Ontario Human Rights Tribunal. The applicant was 72 years old at the time of his employment termination.
The Legal Framework and Principles Applicable to Age Discrimination in Employment
Section 5(1) of Ontario’s Human Rights Code codifies the right of every Ontarian to be free from discrimination in their employment on the basis of the certain grounds:
“5. (1) 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.”
The person who alleges that they have been discriminated against bears the onus of demonstrating such discrimination on a prima facie basis, which test has been summarized by the Supreme Court of Canada to mean that the complainant must prove:
• “The applicant has a protected characteristic under the Code;
• The applicant suffered disadvantage or adverse impact; and
• The protected characteristic was a factor in the disadvantage or adverse impact.”
Once the complainant successfully establishes a prima facie discrimination case, the burden shifts to the respondent to “establish, on a balance of probabilities, a statutory defence and/or a credible non-discriminatory explanation for the impugned treatment.” If the respondent can rebut the prima facie case of discrimination satisfactorily, then the burden shifts back to the complainant to prove, on a balance of probabilities (i.e., to a certainty of 51%), “that the respondent’s explanation is erroneous or a pretext for discrimination.”
Determination of Remedies Under Ontario’s Human Rights Code
Once it has been determined that a person’s rights under the Code have been violated, then the Tribunal turns its mind to the assessment of appropriate remedies. The remedial powers of the Tribunal are established by section 45.2 of the Code, which dictates as follows:
“45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.”
Application of the Legal Principles to the Facts of This Case
It is noteworthy that the applicant was never provided any notice or letter of termination. He was never paid any of the statutory entitlements he was owed following the termination of his employment without cause.
Given these circumstances, it is perhaps unsurprising that the Tribunal quickly concluded that the applicant had been discriminated against in his employment based on his age:
“[32] Applying the prima facie analysis, I find that the applicant has a protected characteristic under the Code (age); they suffered a disadvantage or adverse impact (sudden and unexpected loss of employment income); and the protected characteristic was a factor in the disadvantage or adverse impact (when they were terminated, they were told that it was because the company was going with younger employees).
[33] As the respondent did not attend to rebut the applicant’s prima facie case and I found no reason to doubt the applicant’s evidence and their testimony, which was given in a believable manner, I find that the applicant has proven, on a balance of probabilities, that a violation of the Code has occurred.”
The Remedy
In this case, the applicant sought payment of one year’s lost wages, which he estimated at $10,000, as well as damages for injury to dignity, feelings, and self-respect of $10,000.
Regarding the claim for lost wages, the Tribunal noted that “[t]he purpose of compensation under the Code is to restore an individual as far as is reasonably possible to the position that he or she would have been in had the discriminatory act not occurred. Compensation for lost wages due to discriminatory termination is not limited to what would be payable in contract law for wrongful dismissal”. Given the evidence provided by the applicant to substantiate his annual wage as approximately $5,000 in wages and $5,000 in tips, the Tribunal was satisfied that the $10,000 sought as lost wages was reasonable and thus awarded that amount to the applicant.
Moreover, regarding the claim for damages for injury to dignity, feelings and self-respect, the Tribunal considered that such an award is intended to recognize “the experience of victimization, the vulnerability of the individual, and the seriousness of the offensive treatment. An intention to discriminate is not required.” In assessing such damages, a tribunal should consider the following criteria: the immediate impact of the discrimination on the health (emotional and physical) of the victim; the vulnerability of the victim; “the degree of anxiety the conduct caused”; and the intensity and frequency of the discriminatory conduct.
Applying those criteria to the case at hand, the Tribunal noted that the applicant was only notified of his termination when he was notified by a police officer, who had no interest in the matter, that he had been terminated. In these circumstances, wherein the applicant had been provided no official notice of his termination nor payment about same, he had been denied the dignity to which he was entitled as an employee of the respondent company. Even though this conduct occurred only once, “the objective seriousness of termination of employment occurring in violation of the Code is at the high end, and the impact of the conduct on the applicant was significant. Aside from the loss of income […] the immediate impact of the discrimination was the understandable embarrassment and upset of having been approached by police who told the applicant that they were terminated and effectively expelling them from the area”. In light of these facts, and because the applicant was quite vulnerable at his termination given his age (72), the Tribunal awarded the applicant the $10,000 sought in compensation for injury to his dignity, feelings and self-respect.
Toronto Employment Lawyer Representing Employees In Workplace Human Rights Claims
At Haynes Law Firm in Toronto, we are dedicated to helping clients navigate complex human rights issues in the workplace. Our approach prioritizes efficient and cost-effective solutions whenever possible through negotiation or mediation. Our extensive experience empowers our clients to stand on equal ground with their employers in any dispute. To learn how our experienced employment law team can support you in your human rights claim, please contact us online or by phone at 416-593-2731.
