Age discrimination challenged in Ontario

Etobicoke, Ontario
February 9, 1982

Imagine: You love your job. You do it well. You turn 60 and you're fired.

That's what happened to Harold Hall and Vincent Gray. They were firefighters for the borough of Etobicoke in Metropolitan Toronto. The collective agreement between the borough and the firefighters union said that every firefighter had to retire upon reaching the age of 60.

Was this good sense or age discrimination? Harold and Vincent thought it was the latter and turned to the courts and the Ontario Human Rights Code. Section 4(1) of the code prohibited discrimination in hiring or firing based on the race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin of any employee. Collective agreement aside, Harold Hall and Vincent Gray believed that section 4(1) ensured that they couldn't be fired strictly because of their age.

At first glance, the Ontario Human Rights Code seemed clearly on the firefighters side. Yet, the case became more complex as the borough pointed out that Section 4(1) doesn't apply where age is a bona fide occupational requirement (BFOR). In other words, if age affects your ability to be a good firefighter, then you can lose your job because of your age.

The Ontario Divisional Court said that any BFOR-like retirement at age 60 - must be imposed honestly, and not for any ulterior motive. With this in mind, most of the judges thought that mandatory retirement at age 60 was a reasonable requirement given the physical requirements of being a firefighter. The court sided with the borough, but Harold and Vincent would not give up.

Undaunted, the aging firefighters took their case to the Supreme Court of Canada. The Supreme Court overturned the Ontario Divisional Court's decision - unanimously. It ruled that the Human Rights Code was made for the general benefit of the community and could not, as such, be waived or varied by a union's collective agreement. Moreover, it ruled that a BFOR must be "objectively reasonable." Given the lack of hard evidence proving the firefighters inability to perform due to their age, firing them was discriminatory.

Harold and Vincent were returned to action - with back pay.

Word to the wise...

Before you start thinking about applying to be a firefighter at 14 or 96, you should be warned that the age rule only applies to someone between the ages of 18 and 65.

Ontario Human Rights Code

4.(1) No person shall,

1. refuse to refer or to recruit any person for employment
2. dismiss or refuse to employ or to continue to employ any person
3. refuse to train, promote, or transfer an employee
4. subject an employee to probation or apprenticeship or enlarge a period of probation or apprenticeship
5. establish or maintain any employment classification or category that by its description or operation excludes any person from employment or continued employment
6. maintain separate lines of progression for advancement in employment or separate seniority lists where the maintenance will adversely affect any employee or
7. discriminate against any employee with regard to any term or condition of employment, because of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin of such person or employee.

Subsection 4(6)

(6) The provisions of this section relating to any discrimination, limitation, specification or preference for a position or employment based on age, sex or marital status do not apply where age, sex or marital status is a bona fide occupational qualification and requirement for the position or employment.

Want to know more?

See:
Ontario (Human Rights Commission) v. Etobicoke (Borough)
Ontario Human Rights Code