Factors As A Proxy for Human Rights Violation
An early Ontario decision found for the applicant in an age discrimination case. 1 It relied upon an American case, 2 which stated that such an adverse finding may be made by a link to economic factors as the complainant had achieved a higher salary due to her seniority. In addition, it was noted that the employer had attained an indirect economic benefit as the employee’s pension had yet to vest. The Board’s words are important:
In that case, a 62-year-old designer was dismissed and the Court found that the reason for dismissal was not "age" per se, but rather was an economic reason directly related to age. Because of seniority, the Complainant had a higher salary than any of the other designers. Also, she was dismissed before her pension benefits vested, so the employer was able to reduce the amount of its contribution to the plan. Neaker J. held:
The evidence compels the conclusion that the savings in salary and the unpaid pension benefits accruing to defendants as a result of Feitis' discharge were the controlling economic factors behind her termination. Since such economic factors are directly related to age ... reliance on them to discharge Feitis constitutes age discrimination. (p. 730)
One might imagine that such a significant issue would be the subject of many cases subsequent to this decision. There is, however, but one reported decision, that of the Tribunal 3 which referenced this principle. The decision below of Hall v Zurn does follow the same theme without specific reference to this decision.
The employer was not represented, nor was any evidence called by it at the liability hearing in MacKinnon.
In the above MacKinnon case, the applicant had alleged that he was unfairly treated and abused by the employer, following his return to work as a machine operator after a lay-off for five and a half months. He was assigned particularly heavy work and was verbally harassed. He also testified that he was replaced with younger workers during the period of his lay-off who were unable to perform the job.
At the time he ceased employment due to the conduct of the employer, he had thirty five years seniority and was approaching his 68th birthday.
The Tribunal posed the question as to whether the adverse conduct of the employer was due to age and responded to the effect that an employee with greater seniority would naturally be at the higher end of the income scale of the employer:
Obviously, seniority in a workplace is based on years of service rather than age. However, while a small number of years of service may have little or no connection to age, a high number of years of service has a strong connection to age; it is obvious that an employee who has accrued 35 years of service will predictably be over 50. It is also true, and relevant to the applicant’s claim, that years of experience at a particular type of work usually produce some increase in pay, at least to a point at which increases stop. It is not unreasonable to accept, as a rebuttable assumption, that an employee with 35 years of service in a position will be close to if not at the top of the pay range for that position.
Reliance was also placed by the Tribunal upon the cited passage from O’Brien v Ontario Hydro. A finding of liability was made. A damage award was made of $27,000. No loss of income claim was made as the applicant had introduced no evidence to support this claim.4
The tribunal in MacKinnon referred to such a relationship of higher salary to age as a "proxy" for the underlying grounds of discrimination:
There have been several more recent decisions of this Tribunal that have taken into account proxies for the personal characteristics listed as grounds of discrimination.
The examples given were as follows:
In the employment context, the situation addressed is often a competition for a job or for promotion that sets out requirements, qualifications or considerations that have an alleged adverse impact based on age. See for example Tearne v. Windsor (City), 2011 HRTO 2294 (loss of strength and endurance accepted as age-related), and Waters v. Toronto District School Board, 2011 HRTO 2220 (College of Teachers’ Certificate of Qualifications accepted as only an “imprecise proxy” for age).
The Tearne case is reviewed below. The important issue is that the tribunal did consider submissions similar to the salary arguments in O'Brien to show factors linked to age or as a "proxy" for it. The Waters proxy submission, based on the teachers' certificate of qualifications, failed.
A candidate for a position of a part-time area attendant was requested to complete a medical examination which included testing which was slanted against an older worker. 5 One of the tests looked to the “maximum allowable heart rate” which adversely impacted the older worker.
To succeed on the BFOR, the employer was required to pass the test 6of a rational connection of the medical requirement to the job performance, adopted in good faith, and necessary for work related purposes and that this test was necessary for such purposes. One such component is that it would impossible to accommodate such person as the applicant without undue hardship. Needless to say, this test could not be met for the position in question.
An instatement order was made by the Tribunal provided that the applicant provide an updated medical certificate from his physician, as he had done initially, and that the City may perform such Code compliant medical testing as may be required. Arrears in wages were also ordered from September 2008 to the date of hearing in December 2010.
This concept was also considered and applied in a 2021 arbitral decision. 7 concluding that the criteria for an early retirement may be considered as such a proxy for age:
This Board in Re Anich/Union, 2016-2225 (Devins), although dismissing the grievance on the particular facts, at para. 25 accepted “as a general rule, that eligibility to retire can be regarded as a proxy for age and consideration of an employee’s retirement status might be an improper exercise of discretion or a violation of the Ontario Human Rights Code”. In the instant case the dual criteria of eligibility for early retirement on unreduced pension and having 30 years of pension credit, disproportionately impact older LTIP employees, and apply only to those over 54 years.
Direct Evidence
An early case finding age discrimination 8showed the applicant had been employed in excess of thirty-two years, the last seventeen of which, was as a foreman in the forge shop.
In August of 1985, at age 57, he was terminated, as was another foreman aged 56. Also terminated at the same time was a buyer/scheduler and a steel buyer, aged 61, who had been employed for thirty-seven years.
However, in the prior February 1984, a production foreman had been added to management. Between January and February 1984, two additional management employees were hired, a tool room foreman and a production control supervisor. Two younger foremen were retained in the employ of the company.
McKee was offered the options of (1) being laid off, receiving full salary for six months and if business recovered in this period, he would be returned to the work force, or (2) he could retire immediately and receive a supplemental payment to insure no pension reduction due to early retirement. McKee chose the second option.
The Board concluded a prima facie case had been made out. The employer’s response was that there were certain performance issues was not accepted on the evidence.
The Board observed that a note had been taken in November of 1985, 9some three months following McKee’s termination which that the company “hoped to keep people with a career potential”. 10
The Board interpreted this as “an indication that the company intended to retain employees who were not on the verge of retirement, and who had many years of service left to perform.” Affirmative evidence of such a calibre is, however, rare.
Liability was found. McKee was awarded his lost income until age 65, a period of approximately 8 years, of which fifteen months was prospective when the remedy decision was delivered.
These cases set the high water mark for age discrimination cases in Ontario. Apart from one case in which instatement was ordered due to an overt medical requirement which had age relevance, cases alleging such a Code violation in Ontario have been of a benign nature.
When a finding of culpability has been made, recent orders have been of modest consequences, always due to the finding the age-related Code violation was only influential in causing, as opposed to the sole cause of substantive offence.
This is likely due to the inherent difficulty of proving the case, even with the relatively receptive environment of the Tribunal. Statistical data is admissible but is rarely employed.
Liability was found with respect to age discrimination concerning a position ranked as ES-01, a position for which the applicant applied in 1985 when he was 40 years old. The successful candidate was 35 years of age. 11.
With respect to the 1988 competition, the Tribunal noted that an eligibility list was created following the submission of applications. The number of names to be placed on the list were to be sufficient to meet the anticipated needs. Singh was then 43 to 44 years old.
Statistical and Direct Evidence
In determining whether the complainant had made out a prima facie case, the Tribunal noted the direct and statistical evidence to support the case. There was no evidence of the age and qualifications of the successful candidates, an issue, which however, did not impede the demonstration of a prima facie case, in that the issue was the failure of the employer to place Singh on the eligibility list. Reliance was also placed on statistical evidence showing an adverse pattern:
As well, we have statistical evidence regarding the age distribution of ES-01 employees within Statistics Canada which shows that a disproportionate number of the employees were under 40, and that in fact, the vast majority of recruits were under 30. Mr. Singh was 43 or 44 at the time.
There was no evidence of the age and qualifications of the successful candidates, an issue, which however, did not impede the demonstration of a prima facie case, in that the issue was the failure of the employer to place Singh on the eligibility list:
Applying the test articulated in the O’Malley case, we find that the evidence before us as it relates to the age issue is sufficient to justify a verdict in Mr. Singh’s favour, in the absence of an answer from the respondent. Accordingly, we find that Mr. Singh has established a prima facie case of discrimination on the basis of age and that the burden shifts to the respondent to provide a reasonable explanation for its actions.
The explanation provided by the employer for this refusal to place Singh’s name on the list was that there was only one position to fill, which to the Tribunal seemed reasonable on first reading.
There was evidence, however, that the employer had put in place steps to form a younger work place:
It is clear from the evidence of Mr. Dodds and Mr. Nemes that in the late 1980's, Statistics Canada had become concerned about the aging of its managerial population, had identified the need for renewal, and had set about recruiting a younger workforce. We note that Statistics Canada did not attempt to justify the failure to put Mr. Singh’s name on the eligibility list on the basis that, in the circumstances, being young was a bona fide occupational requirement of the position, but rather the respondent denied that Mr. Singh’s age was a factor in the decision itself.
The evidence, the Tribunal concluded, showed a bias against older workers.
The employer’s explanation for declining to place Singh’s name on the eligibility list was hence concluded to be pre-textual. Liability was found.
The remedy awarded was that Singh be instated into the first available ES-01 position. It was noted that the typical progression path from this position was to more senior ES positions, given success. Instatement to a higher level ES position was requested but not awarded due to an undercurrent of possible performance issues and inherent contingency that he may not have been awarded the position even if he had been placed on the list of those eligible:
A lost wage claim for the differential in income levels was also ordered from August 1989 to the date of the instatement in 1998.
A similar submission was made of such adverse treatment before the Ontario tribunal. 12The applicant was 58 years of age and employed for eight years, when she was asked in 2000 when she intended to retire. She was the sole employee to whom this question was posed. She then advised she would retire on December of 2002, a date which she consensually deferred. By June of 2004, a new retirement date was set for December 2005.
Both actions in asking for her retirement date in 2000 and again in June of 2004 were found to be adverse treatment due to age.
In February of 2005, an offer of employment had been extended to a new person to replace the applicant commencing in the late fall of that year. In May of the same year, the applicant’s spouse died. She requested and was declined a postponement of the set date.
The applicant had asserted that the agreement to retire as of December 2005 was not a binding agreement to which the Tribunal responded that the sole issue for it to determine was whether the company’s decision to permit her to continue her employment was related to her age. The finding made was that the company’s decision to permit the applicant to rescind or defer her retirement date was because that it had made an alternate commitment to hire a new employee.
The remedy afforded was an award of $3,000 for violation of the Code for injury to dignity.
There was no lost income award as the applicant herself had fixed the last date of active employment.
"A" Factor
The decision is peculiar as it, in essence, upholds the employment agreement to retire, which was created due to a conduct which was a Code violation. The decision which speaks to “the only issue before me is whether a factor in the respondent’s decision not to permit her to continue her employment was related to her age” presumes that the retirement agreement is valid, which clearly arose due to the company’s unlawful conduct.
In a Tribunal decision of August 2009, 13the complainant’s allegation of age discrimination succeeded, in part by showing that the failure of the employer to monitor the performance improvement plan was age related and an adverse finding was hence made on this basis.
The conclusion reached by the Tribunal was the age was a factor in causing the complainant’s termination as this factor was at play with respect to the intended remedial performance review:
As a result, the issue of whether steps had been taken to address the performance issues was a factor in the termination decision. Accordingly, as I have found that the failure to take such steps was tainted by age discrimination, I find that this in turn tainted the respondent’s decision to terminate the applicant’s employment. As a result, I find that age was a factor in the respondent’s decision to terminate the applicant’s employment.
The remedy hearing was cautioned by the prefaced comments by the Tribunal that although it had observed that while the performance monitoring process was tainted, the conclusion that there were real performance issues was not.
The Tribunal concluded that there was no material loss suffered by the complainant as she had not voluntarily recognized that there were are legitimate performance issues to be addressed and hence even a proper performance monitoring would have yielded the same difference, namely, no improvement and a termination.14
The remedy afforded to the complainant was the severance offer as originally extended and then declined, less the statutory sums paid to date.
A compensatory order was also made of $20,000 despite the noted lack of medical evidence.
An example of the nature of the evidence required to show that the human rights issue was influential was seen in a 2011 Ontario case.15The applicant, who was eligible to retire with a full pension in March of 2009, advised of her intent to apply for a posted position in October of 2008, to which her boss asked her to confirm that she really did want this position. This and discussion as to the advantages of retirement and raising likely difficulties she may experience in the interview were seen as an encouragement to retire leading to a finding of adverse treatment due to age.
In the actual interview process, the applicant was ranked fourth. The three candidates who achieved better scores were each awarded a position of Community Safety Analyst. All were younger than the applicant, who had been doing this job for some years. The interview itself was not tainted by the prior conduct. Had it been so, this decision would likely not have followed.
Applicant to Show Decision Unreasonable
The test, however, was that the applicant had to prove the decision was unreasonable, an onerous burden.
In essence, the party seeking the remedy must prove that the hiring decision was hence unreasonable,16 in the absence of direct evidence of adverse treatment. Where the evidence is indirect and the hiring decision reasonable, there will be no liability found. The employer need not establish its decision is correct, only reasonable.
An award was made of $7,000 for the age violation. 17
Direct Question on Age
In one fact situation 18the employer asked the applicant her age and upon having received the response of 45 years, discontinued any further discussions. Such a question about age or for that matter, any other personal characteristic reflected in adverse grounds of discrimination, in itself is a code violation.
The lost income claim was based on the loss of opportunity of a permanent position following the period of internship. This was assessed at a 50% likelihood, given the analysis below. 19
The issue in the case was whether the applicant would have been confirmed in permanent employment following the unpaid training period. The final position contained a bookkeeping component with which the applicant was unfamiliar. The award of fifty percent of the loss followed.
The period of unemployment was determined at 11 weeks and an award hence followed of 50% of the likely income in the sum of $1,815. An award of $15,000 was made for the Code violations and injured feelings.
A finding was made that the employer’s request for age identifying documentation such as a driver’s licence and birth certificate violated the Code.20The Tribunal dismissed the substantive claim of the applicant in that the hiring decision for a fire fighter position with the City was influenced by age.
No damage award was made for this breach, as it was concluded that the applicant had voluntarily disclosed this information prior to the request being made.
A similar case arose brought by a 58 year old lawyer who applied to the respondent legal publisher for a position as a commercial legal writer. He and others had submitted applications for two vacant positions. .21
Upon sending his resume, his application had been determined by the committee considering the appointments to be put “on hold” as one position had then been filled and two promising candidates were being considered for the remaining position.
At this time, the applicant had emailed one of the decision makers, Mr. Schon, asking when he might hear about an interview. In reply, Mr. Schon told him that his application had been rejected, a statement which was untrue. The applicant, in turn, asked if his credentials were out of date, in response to which Mr. Schon told him that “it is looking like they are moving toward candidates that are more junior in their experience and salary expectation”. That statement was also untrue as the applicant’s stated salary expectations were lower than the other candidates.
The evidence, however, showed that the decision to deny the applicant an offer of employment were not age related. The primary decision maker was not Mr. Schon but Ms. Mason.
Following the hiring of the position, the successful candidate quit and the second promising person declined the offer. The position hence remained to be filled. The Tribunal concluded that had the applicant been told he was “on hold” as opposed to being declined, he may well have followed up. This was found to be connected to the adverse treatment afforded to him by Mr. Schon.
An award was made of $5,000.
Typically there is no need to introduce affirmative evidence of a damage suffered due to a Code violation as damages are presumed. The first justification for declining an award of compensatory damages is not consistent with prior jurisprudence. An order was made requiring the City to desist from such requests for similar documentation in the future.
Reorganization
This issue was reviewed in a 2001 decision of the Newfoundland & Labrador Board of Inquiry. 22 The complainant had been told that his position of District Manager had been abolished. This brought into issue the finding that a younger William Clarke was offered these responsibilities. These factors brought into view the selection process which led to these decisions. The Board saw these influential to detect more than the "subtle scent of discrimination". The Board concluded these actions were discriminatory.
In 2012, the Alberta Human Rights Tribunal (Heafey) in Cowling v The Queen made a finding of age discrimination. Ms. Cowling was employed pursuant to a series of four fixed term contracts commencing in May of 1999 through to May of 2007. There were occasional gaps in the continuum during which she continued to perform her regular duties. Approximately one year prior to the expiry of the last of these agreements, she was advised that there would be no further renewal, a decision which prompted her successful human rights application, based on age. The Tribunal concluded:
I find that Ms. Cowling was not seriously considered for the position right from the very beginning. Again, while I acknowledge that organizations are free to restructure they cannot, without legal justification, deny continued employment either in whole or in part on the basis of age. In this case, a restructuring occurred wherein Ms. Cowling, a woman past the historical age of retirement, was denied continued employment either in whole or in part due to her age. Ms. Cowling met the qualifications and clearly could “grow and develop” with respect to any mediation requirements but was not allowed to continue in her position because of her age, as the Respondent wanted someone who, in a younger age bracket, could ostensibly attend at the job for a longer period of time.
The Tribunal hence concluded that a prima facie case was proven, which the employer failed to rebut.
In assessing the lost income claim for the period of five years to the date of the award, the Tribunal considered that the existence of the contractual relationship was a factor to be considered in the damage assessment and reflected the inherent fragility of same to discount the award by thirty percent.
A similar issue appeared before the Ontario Tribunal in its 2012 liability decision. 23 The applicant had argued when her position was terminated due to a restructure, her substantive responsibilities of HR Generalist were assigned to a younger person, who was also paid less than the applicant's annual income of roughly $100,000. A prima facie case was found.
As to the defence put forward by the employer, the tribunal found that the salary of the applicant was a factor. This brings is precisely the "proxy" argument referenced above in O'Brien, although this was not specifically referenced. The decision noted:
I do not accept that the applicant’s dismissal was simply a function of the discontinuation of her formal position of HR Manager, or that it was unrelated to the process of filling Ms. Scola’s former position of HR Generalist for Canada. I find, in particular, that the applicant’s salary was a factor in the decision to terminate her, and to hire Ms. Giergont. I further find that the respondents had a positive obligation to consider the applicant’s particular career circumstances, and to either offer her, or invite her to apply for, the position left vacant by Ms. Scola.
The reasons continued on the same theme:
Given that cost was very much a consideration both in the general reorganization process and in the question of how to deal with the applicant’s position, I find it reasonable to conclude that cost was also a factor in the decision to hire Ms. Giergont. Just as it would not have made sense to pay the applicant her salary as an HR Manager in the position of HR Generalist, so too would it have been unreasonable to recruit for a new HR Generalist at an HR Manager’s salary. As noted in the comparison of the job descriptions of HR Manager and HR Generalist, the former requires more years of experience than the latter, and so it would be reasonable to expect that HR Generalists would normally be at an earlier stage in their careers, and therefore younger. I, therefore, conclude that, in not offering Ms. Scola’s position to the applicant, and in hiring Ms. Giergont, the respondents at least indirectly sought to hire a younger, lower-salaried employee than the applicant.
Liability was found.
The remedy decision was made subsequently. Lost income was allowed from June 1, 2015 through to January 26, 2021, a period of roughly of five years and 7 months at $99,200 per year plus an unstated sum for CPP accruals. Reasonable mitigation was found. There was no set-off. Medical expenses were awarded in the sum of $7,000. Damages for humiliation were set at $20,000.