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Human Rights Legislation

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Ontario is one of fourteen jurisdictions in Canada with anti-discrimination legislation. This includes the federal government, ten provinces and three territorial governments. In Ontario, the Human Rights Code (the 'Code') protects against discrimination on the ground of age in relation to accommodation (housing), goods, services and facilities, employment, contracts and membership in vocational associations. All other Canadian jurisdictions provide protection for discrimination on the basis of age in employment[1].With the exception of three provinces[2], all Canadian jurisdictions also provide the protection in relation to housing, goods and services generally available to the public.

Although the first human rights code in Ontario was enacted in 1962, it was not until 1972 that age was added as a ground of protection. An extremely limited definition of “age” was first employed, focusing on the protection of workers between the ages of thirty-nine and sixty-five. This was because, at the time, many middle-aged workers were not being hired or were being replaced by employers seeking younger workers who would be willing to accept lower wages and would not place so many demands on costly benefit schemes.

In 1982, following an extensive public consultation and review of the Code and substantial amendments, the definition of “age” was broadened to what it is now. It is interesting to note that in the final report on that consultation, the issue of “mandatory retirement”, or the absence of laws prohibiting the firing of people sixty-five years or older, was raised[3]. It seems, however, that the legislators did not consider the issue important enough to merit inclusion in the amendments at that time.

Also, in 1982, Canada’s Charter of Rights and Freedoms was enacted along with the patriation of its Constitution. The Charter affirms the equality before and under the law of every individual without discrimination because of age, among other grounds. It also allows for laws, special programs or activities designed to ameliorate disadvantage for older persons[4].

The term “age” is defined by the legislation[5]. In Ontario, there is no upper limit on age in the areas of housing, goods, services and facilities, contracts and vocational associations. However, in employment there is a maximum age for discrimination, namely 65[6]. In other words, in employment only, the Code does not protect against discrimination on the basis of age where the individual is 65 years of age or more. The age 65 cap has been affirmed by the Supreme Court of Canada in the case of McKinney v. University of Guelph[7].That is not to say that persons 65 or over do not receive the protection of the Code; they are able to complain about discrimination in employment on the basis of any ground other than age.

In addition to direct, intentional discrimination, the Code recognizes that a requirement, qualification or factor that is neutral and non-discriminatory on its face may nonetheless exclude, restrict, or prefer some persons because of age. This is often called "adverse effect", or "constructive" discrimination. The Code allows an employer to justify a standard, factor, requirement or rule that has an adverse effect because of age by showing that it is a “bona fide or reasonable” requirement. For example, a requirement that job applicants be “recent graduates” of a program may have the effect of excluding older candidates who are less likely to have completed their studies recently. However, in such a case, the employer would have to show a justifiable reason for this requirement.

At the same time, the Code allows for preferential treatment of persons sixty-five or older. Common examples include seniors’ residences, seniors’ discounts for goods and services, reduced rates for public transit, “golden age” passes and other benefits.


[1] The discussion of the age discrimination provisions in Canadian jurisdictions is from R.W. Zinn & P.P. Brethour, The Law of Human Rights in Canada: Practice and Procedure (Aurora: Canada Law Book, 1999).
[2] Alberta, British Columbia and Newfoundland.
[3] Life Together: A Report on Human Rights in Ontario (Toronto: Ontario Human Rights Commission, July 1977), p. 66
[4] See the Charter of Rights and Freedoms section 15 <http://laws.justice.gc.ca/en/charter/ >
[5] There is no consistent definition of age in the various Canadian jurisdictions. Some define age by setting a maximum age.  In British Columbia, Newfoundland and Saskatchewan, as in Ontario, the maximum age limit for a claim in employment on the basis of age is 65.  In Saskatchewan only, the maximum limit also applies to other areas of discrimination (e.g. services).  In all cases, the maximum is set at 65 years of age which, following a long history, has became a standard retirement age in several jurisdictions and is also the age when various retirement benefits commence.
[6] Definition of 'age' in s. 10(1) of the Code.
[7] In 1989, eight professors and one librarian employed at four Ontario universities filed a complaint with the Commission after they had been required to retire by their employers. The commission did not deal with the complaint as the ages of the complainants were above 64 and, thus, the commission lacked jurisdiction. The complainants then challenged the definition and the commission decision, ultimately to the Supreme Court of Canada (SCC). The SCC determined that mandatory retirement policies violated the equality rights section of the Charger of Rights and Freedoms (section 15), but that the objectives behind mandatory retirement policies significantly outweighed the impairment of the rights of older workers. For this reason the limited definition of age in employment has been allowed to stand for 15 years.

 

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