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Permissible distinctions on the basis of age

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In addition to the BFOR defence, discussed above, there are other exceptions in the Code which permit distinctions to be made on the basis of age.  The provision dealing with pensions and related benefits provides that:

25. (2) The right under section 5 to equal treatment with respect to employment without discrimination because of age, sex, marital status or family status is not infringed by an employee superannuation or pension plan or fund or a contract of group insurance between an insurer and an employer that complies with the Employment Standards Act and the regulations thereunder.

The Code expressly provides for the preference of persons over 65 years of age in certain circumstances. Section 15 states:

15. A right under Part I to non-discrimination because of age is not infringed where an age of sixty-five years or over is a requirement, qualification or consideration for preferential treatment.

As well, the provision dealing with special programs in general (s. 14) may allow the implementation of a special program, if all the requirements are met, where the preferential treatment is aimed at older persons who have not reached the age of 65.  A Board of Inquiry has considered one such special program aimed at persons under 65 years of age.  In Broadley v. Steel Co. of Canada Inc.[113], a provision in a collective agreement granting employees with 25 years of service extended vacations beginning at age 61 was challenged on the basis that it discriminated against those under 61 years of age.  The respondents argued that the benefit was designed to relieve hardship and therefore qualified as a special program under s. 14 of the Code. The Board of Inquiry applied a very broad definition of ‘hardship’: hardship covers a range of problems stretching from something “more than mere inconvenience” through “adversity, suffering, or humiliation” to “extreme privation or difficulty”[114]. The Board went on to find that moving from fulltime work, spanning a lifetime, to the complete absence of work is a major change carrying with it social, psychological and financial implications.  Accordingly, the hardship that extended pre-retirement vacation provision was designed to alleviate was the difficulty older workers often experience in the transition from full employment to full retirement.  As the provision was designed to relieve hardship, it qualified as a special program.

It is interesting to note that the Board in Broadley commented that the vacation scheme did not involve a meticulously designed, elaborate, detailed and carefully monitored special program as envisaged by the Commission’s Guidelines on Special Programs.  Nevertheless, the fact that the provision did not meet all the suggested standards was not fatal to the s. 14 argument.  This illustrates that some aspects of the Guidelines do not always fit well with special programs designed to alleviate hardship and disadvantage in relation to age.  Another example of this is the section of the Guidelines that states that the special program should indicate that it is for a specific time and is of a temporary nature.  Some special programs in relation to age, for example housing specially designed for and restricted to older persons, cannot reasonably be temporary.

The Broadley decision demonstrates a desire on the part of decision-makers to uphold schemes that give benefits to older persons when they are challenged by younger persons who cannot access the benefits.  The decision-maker in that case upheld the scheme by finding it to be a special program.  However, in light of a recent Supreme Court of Canada decision, there may be another option for finding these types of age distinctions non-discriminatory. 

In Law v. Canada (Minister of Employment and Immigration)[115] the court considered the constitutionality of age distinctions for determining entitlement to survivor pensions under the Canada Pension Plan.  The appellant, Nancy Law, was not entitled to a survivor’s pension when her spouse died because she was too young (Ms Law was 30 years old and the minimum age for entitlement was 35).  The Supreme Court summarized and commented upon the basic principles relating to the purpose of s. 15(1) of the Charter and provided a set of guidelines to assist courts when analyzing a discrimination claim. 

The approach set out in Law requires the same three step analysis first articulated in Andrews v. Law Society of British Columbia[116]. However, the Law decision elaborates on the application of the three-step analysis and the factors to be taken into account. In analyzing a discrimination claim, the court should make the following three broad inquiries:

  1. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within society resulting in substantively differential treatment?
  2. Is the claimant subject to differential treatment based on one or more enumerated and/or analogous grounds?
  3. Does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.

As the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, an essential component of the discrimination analysis is a determination of whether the law has the effect of demeaning a claimant’s dignity.  There are several factors that will be important to this determination, for example any pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue.

In Nancy Law’s case, the legislation at issue clearly drew a distinction on the basis of personal characteristics and she was subject to differential treatment based on an enumerated ground in s.15(1) of the Charter, namely age.  Accordingly, the first two elements of discrimination analysis were easily met.  However, the central issue was whether the age distinction constituted discrimination under s. 15(1) of the Charter.   The court observed that, relatively speaking, adults under the age of 45 have not been consistently and routinely subjected to the sorts of discrimination faced by some of Canada’s discrete and insular minorities.  The purpose of the provisions was to enable older widows and widowers to meet their basic needs during the longer term.  Younger persons face fewer impediments to long-term labour force participation. The law did not reflect or promote the notion that younger persons are less capable or less deserving of concern, respect and consideration nor did it perpetuate the view that people under the age of 45 are less capable or less worthy of recognition or value.   The legislation did not stereotype, exclude, or devalue adults under age 45.  Moreover, the law had a clear ameliorative purpose, i.e. to address the needs of a more disadvantaged group, which accords well with the fundamental purposes of s. 15(1) of the Charter.  For all of these reasons, the legislation was found not to demean Ms. Law’s human dignity and freedom and was not discriminatory contrary to s. 15(1) of the Charter.

The application of this case to age discrimination claims under the Code will have to be considered further in the Commission’s policy work in relation to age.  However, the decision may address various programs[117] that give benefits to individuals under the age of 65 and which might not otherwise qualify as special programs under s. 14 of the Code.  Provided all the elements of the approach articulated in Law are met, these schemes may be permissible and may not discriminate against younger individuals who are not entitled to the benefit.

[113] (1991), 15 C.H.R.R. D/408 (Ont. Bd. Inq.).
[114] Ibid at 411.  Quoting from Professor Backhouse’s decision in Roberts v. Ontario (Ministry of Health) (1989), 10 C.H.R.R. D/6353 (Ont. Bd. Inq.).
[115] [1999] 1 S.C.R. 497, online: Supreme Court of Canada <>.
[116] [1989] 1 S.C.R. 143.
[117] Examples include retirement schemes that are based on a combination of age and years of service (i.e. ‘Factor 80’ schemes: a 60 year old with 20 years of service is eligible to retire but a 59 year old with 20 years of service is not) or ‘Freedom 55’ type programs offered by many institutions.



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