• Tony Wong

Age Discrimination vs. Bona Fide Occupational Requirement (BFOR)

In this post, we'll talk about Ontario cases and Human Rights Tribunal decisions regarding age discrimination. Continue reading to learn more.

s age discrimination

Topics Will be Covered in This Post:

  1. What is Age Discrimination?

  2. How to Prove Age Discrimination

  3. Summary Hearing Example for Bullying and Harassment Claims

  4. Age Discrimination in Termination

  5. Bona Fide Occupational Requirement

  6. Conclusion

1. What is Age Discrimination?

What is Age Discrimination

The Ontario Human Rights Code (the “Code”) prohibit workplace discrimination. However, the Code does not prohibit general bullying and workplace harassment.


A successful claim of workplace discrimination at the Human Rights Tribunal of Ontario (“HRTO”) requires an applicant (i.e. the victim of the workplace discrimination) show that one of the prohibited grounds of the Code was a factor in the bullying and harassment (i.e. race, age, sex, disability, etc.).


In determining whether a case of workplace discrimination can be successful made out at the HRTO, the key question to ask is whether the employee’s Application is somehow connected to the Code?’

Human Rights Tribunal of Ontario

Age is a protected ground under the Ontario Human Rights Code (Code), and it's illegal to discriminate anyone because of age unless it's a bona fide occupational requirement (BFOR), which will be discussed below.


To establish a case of discrimination under the Human Rights Code in the employment law context, an Applicant must show that:

  1. they have a characteristic protected from discrimination (e.g. old age);

  2. they have experienced an adverse impact in hiring, in the workplace, or in termination decision;

  3. and the protected characteristic (e.g. old age) was a factor in the adverse impact.

The Applicant MUST establish a prima facie case by showing that it is more probable than not that age discrimination took place.


Intent is irrelevant for establishing age discrimination. Once a prima facie case has been established, the burden shifts to the Respondents that the adverse impact was justified as a BFOR.


2. How to Prove Age Discrimination?

Discrimination is often hard to prove, and to be successful, an Applicant needs to have evidence of discrimination, both direct evidence and circumstantial evidence are acceptable. An allegation of age discrimination without any actual proof is not sufficient to establish a prima facie case.


In deciding whether an application has a reasonable prospect of success, the oft-cited case of Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII) at para. 8 to 10 is instructive:


In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success....


In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated....


.... However, when there is no reasonable prospect that any ... evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.


As the Human Rights Tribunal of Ontario (HRTO) explained further in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (CanLII) at para. 17:


The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.


3. Summary Hearing Example for Bullying and Harassment Claims

A recent case at the HRTO sheds light on the Summary Hearing procedure with respect to an allegation of workplace harassment. In Galuego v. Chartwell Master Care LP, 2019 HRTO 343, Leonardo Galuego, the applicant, alleged that he was bullied and harassed by co-workers and unfairly disciplined.


A Summary Hearing was initiated, and the HRTO quickly dismissed the complaint as having no reasonable prospect of success because the applicant’s allegations of bullying and harassment were not connected to the Code. The HRTO has held from paragraph 22 to paragraph 29 that:


[22] In both his materials and oral submissions in the summary hearing, the applicant was unable to explain or establish a link between the Code grounds listed and what the respondent is alleged to have done


[23] When asked directly why and how he believed his age was a factor in the alleged mistreatment, the applicant responded that because he was older, he should not have had to relocate to a new floor at work, as it would have impacted his effectiveness at work, rather than explaining how his age had been a cause of the mistreatment he allegedly received. Similarly, when asked about the accommodation he sought, the applicant stated that he believed the respondent failed to accommodate him when it did not properly investigate his complaints of harassment.


….


[26] Ultimately, it appears that the true concern of the applicant is that, in his view, the respondent did not properly investigate his longstanding complaints of harassment, not whether that behaviour turned, to some degree, on the Code grounds cited in the Application.


[27] I have no doubt the applicant strongly and genuinely believes that an injustice was done to him. However, the applicant has provided no information from which the Tribunal can reasonably infer that any of these actions, even if proven, were due to the applicant’s age, disability or sex. The Tribunal cannot decide general allegations of unfairness unrelated to the Code.



[29] For an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred.


4. Age Discrimination In Termination


The normal age for retirement in Canada is 65, but mandatory retirement is against the law. The Human Rights Code (the Code) do not specify a retirement age. S. 10 (1) of the Code limits protection from age discrimination in employment to persons aged 18 or more.

It’s not easy for an Applicant to successfully made out a claim of age discrimination. In fact, the vast majority of age discrimination cases are flagged by the HRTO at the internal review stage. If that happens, the HRTO will send a Notice of Intent to Dismiss the Application (NOID) to the Applicant, where the Applicant has roughly 30 days to response and establish a prima facie case of age discrimination.


However, if the complainant is able to establish a prima facie case of discrimination, it is very difficult for the employer to establish that the termination is justified on the basis that age is a Bona Fide Occupational Requirement (BFOR).


The decisions in Adams v. Bata Retail, 1988 CanLII 8868 (Ont. Bd. Inq.). and Watchman v. Canada Safeway Ltd., 1992 CanLII 14254 (BC HRT), provide two good examples of ‘typical’ cases in this area. In the first case, the Ontario Board of Inquiry did not find age discrimination but found that the complainant’s employment was terminated primarily on the basis of unsatisfactory performance and also because the company was making changes in an effort to overcome financial difficulties. Similarly, in the second case, the complainant’s demotion was found to be because of work performance.

age discrimination vs. poor work performance

The decision in Kearns v. Dickson Trucking Ltd., 1988 CanLII 111 (CHRT), is one example of a case in which age discrimination was successfully made out. However, the evidence in that case was overwhelming and there was no other reasonable explanation for the termination. The complainant, a 69-year-old salesman, was the best in the organization and there were no complaints at any time about his performance. Although he was terminated on the basis of “a lack of potential in the area serviced by him”, his position was not declared redundant but rather was filled by a younger person. Mr. Kearns was awarded damages for lost wages and for hurt feelings and self-respect.


5. Bona Fide Occupational Requirement

A Bona Fide Occupational Requirement, or BFOR, is workplace job requirement that allows an employer to “justify" an otherwise prohibited ground, if there is a legitimate reason that is connected to the ability to do the job.


In British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union, 1999 CanLII 652 (SCC), the Supreme Court has created a unified test, the Meiorin test, to determine if a violation of human rights legislation can be justified as a BFOR.


Under the Meiorin test, an employer can justify the impugned standard by establishing on the balance of probabilities:

  1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;

  2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

  3. that the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Click here for further reading regarding BFOR.

Supreme Court of canada

The Supreme Court of Canada has established the undue hardship test in Central Alberta Dairy Pool v Alberta (Human Rights Commission), [1990] 2 SCR 489.


Click here for further reading regarding undue hardship.


To survive the Meiorin test, a mandatory retirement policy should contain exceptions for employees who are able to perform their duties despite their old age , and provide them with reasonable accommodations. Possible forms of reasonable accommodation may include allowing older employees to continue working on job duties with lighter workloads, as long they pass periodic medical check-ups and performance appraisals.


6. Conclusion


A case of age discrimination may be successfully made out when an employee is terminated due to old age for reason unrelated to job performance or job redundancy; or due to a mandatory retirement policy that doesn't pass the Meiorin test.


There's no one-size-fit-all test for mandatory retirement policy, and each workplace is different.


When you have been terminated wrongfully or you have been constructively dismissed or you have been terminated due to age discrimination, or that you are a victim of workplace harassment or workplace discrimination, you should consults with an employment lawyer or you risk waiving your legal rights under Common law, the Human Rights Code or your rights in suing for wrongful dismissal, constructive dismissal or workplace discrimination.

Don't Wait, Act Now before it's too late. Call us now at 647-849-6582 or Contact Us Now if you have any questions or concerns in related to employment contract, termination, discrimination or severance package or you want to book an appointment for a legal consultation.

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