Age discrimination challenged in 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,
- refuse to refer or to recruit any person for employment
- dismiss or refuse to employ or to continue to employ any person
- refuse to train, promote, or transfer an employee
- subject an employee to probation or apprenticeship or enlarge a period
of probation or apprenticeship
- establish or maintain any employment classification or category that
by its description or operation excludes any person from employment
or continued employment
- maintain separate lines of progression for advancement in employment
or separate seniority lists where the maintenance will adversely affect
any employee or
- 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.
(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
Want to know more?
Ontario (Human Rights Commission) v. Etobicoke (Borough)
Human Rights Code