5. Employment | Ontario Human Rights Commission

Assumptions and stereotypes about older workers are unfortunately all too prevalent in our workplaces. Older workers are often unfairly perceived as less productive, less committed to their jobs, not dynamic or innovative, unreceptive to change, unable to be trained or costly to the organization due to health problems and higher salaries. These ideas about older workers are simply myths that are not borne out by evidence. In fact, there is significant evidence that older workers:

are highly-productive, offering considerable on-the-job experience^[17]
do as well or better than younger workers on creativity, flexibility, information processing, accident rates, absenteeism and turnover^[18]
can learn as well as younger workers with appropriate training methods and environments^[19]
do not fear change but rather fear discrimination.^[20]

Aging is a highly individual experience and it is not possible to generalize about the skills and abilities of a person based on his or her chronological age, any more than it is possible to make assumptions about someone based on any Code ground.

As a general principle, older workers should be treated as individuals, assessed on their own merits instead of presumed group characteristics and offered the same opportunities as everyone else in hiring, training and promotion. They should be subjected to the same performance management practices as every other worker. Age, including assumptions based on stereotypes about age, should not be a factor in decisions about lay-off or termination.

In fact, underestimating the capabilities of older workers and treating them differently as a result can actually hinder them from maintaining their productivity and value. On the other hand, treating older workers equally allows employers to utilize a valuable resource, especially given that there are current and projected labour shortages.

Example: An employer assumes that an older worker is too difficult to train and, in any event, is “riding it out to retirement”. She is not sent for training and is given performance reviews that do not meaningfully identify strengths and areas where there is room for improvement. Her skills do not remain current, she cannot work on improving in her weaker areas and she is less motivated to work hard because she feels she is not a valued worker, is not expected to perform and will never be recognized for her contribution.

5.1 Hiring

Older workers face significant barriers in finding employment. These can take the form of overt discrimination, such as not hiring someone simply because of his or her age, or more subtle or systemic discrimination, such as eliminating someone because of a perception he or she lacks “career potential”. Such barriers can be compounded for persons who belong to groups that face their own barriers in accessing employment such as racialized persons, newcomers to Canada and persons with disabilities.

Whether the discrimination is overt or systemic, the Code protects individuals against discrimination on the basis of age in the hiring process. The Code prohibits a job advertisement that directly or indirectly classifies or indicates qualifications by age (subsection 23(1)). Similarly, application forms and oral questions must not directly or indirectly classify or indicate qualifications on the basis of age (subsection 23(2)). However, during an employment interview, questions may be asked about age provided that drawing a distinction on the basis of age is permitted under the Code.

This means that:

In an advertisement: Statements that directly or indirectly relate to age should be avoided. Nothing should unfairly prevent or discourage an older worker from applying for a job. Requirements or duties for employment should be reasonable, genuine and directly related to the performance of the job.
On an application form: While a form may ask “Are you 18 years or older and less than 65 years of age?” it should not ask any other questions about or relating to age or date of birth. The form should not request copies of documents that indicate age. Some employers may even choose not to ask when schooling was completed as this may often indicate age.
During an interview: Questions relating to age should only be asked if a Code defence applies such as where a special program is in place (section 14), employment is aimed specifically at persons 65 or over (section 15), the employer is a special interest organization serving a particular age group (section 18) or age is a BFR.

Where age or date of birth is relevant to company pension and benefit plans, this information should be collected after making an offer of employment and should be kept confidential.

Demonstrating that age was directly or indirectly a factor in a hiring decision can be challenging. Employers rarely state that age was the reason for not giving an applicant the job. However, the following considerations may suggest that age was a factor in not hiring an applicant:

The employer indicated qualifications at any stage of the recruitment process which can reasonably be interpreted as a euphemism for age: e.g. “Do you think you can handle this job? It takes a person who is full of vim and vigour.”, “We are looking to rejuvenate the workforce.”
There is evidence the assessor made an issue about the age of the applicant such as by commenting on the applicant’s appearance and/or health or suggesting that the applicant may not fit into a youthful work culture.

There is evidence that the employer considered age to be relevant when determining whether a person might adapt to certain job conditions such as menial tasks, minimal responsibility, low pay, shift work, being supervised by a younger person or that the employer felt that the candidate would not be trainable.^[21]

There is evidence that the employer felt that person would be too costly to the organization because of his or her age: e.g. there was an assumption that there will be less time to recoup training costs, the applicant will expect a higher salary, or an older person will cost more in benefits, especially related to disability.
There is a pattern in the past hiring or employment practices of the employer suggesting a preference for, or an institutional bias toward, younger workers. Statistical evidence can be relevant in this regard (see discussion of statistical evidence in section 5.2 On the job].
The applicant’s qualifications for the job were as good or better than those of the person hired and the person hired was significantly younger than the applicant. This will be compounded if any of the above factors are also present, such as a pattern of preferring younger applicants or commentary related to age. Also, the intersection of other disadvantaging factors such as race, ethnic origin, gender and disability may be important to consider if there is evidence of other patterns of discrimination in the workplace.

Some of the reasons that may be given for not selecting an older candidate are neutral on their face and yet may have a disproportionate impact on older persons. Some non-exhaustive examples include:

Turning away someone due to a perceived lack of “career potential”: This requirement tends to adversely impact on older applicants, especially where they are applying for “entry-level” type jobs. Given the high rates of turnover in today’s labour force and the fact that it is rare for someone to remain with the same organization for their entire career, it may be difficult to justify turning away an otherwise qualified person on the basis that they will not stay and grow within the organization solely because of their age.

Refusing an applicant who has “too much experience” or who is “overqualified”: Sometimes this is simply used as a pretext for direct discrimination. However, most often this is a neutral factor that is not intended to discriminate. Nevertheless, turning away candidates who are “overqualified” may sometimes have an adverse effect on older persons, as they are more likely to have significant work experience and at the same time be changing careers due to a period of unemployment or a desire to transition into retirement. This can be compounded for others such as newcomers to Canada who may have no choice but to apply to positions they may seem overqualified for in order to get “Canadian experience”^[22] or to “get their foot in the door”. Human rights law is based on the principle that employment decisions should be based on the applicant’s ability to do the job. Therefore, the potential for human rights claims can arise where a qualified person is willing to take a job at the rank and salary offered but is refused simply because he or she has additional experience or skills.

Eliminating an applicant because the applicant’s background is too diversified or contains gaps, the applicant is too specialized and will have trouble learning or the applicant’s experience is too remote: All of these factors can serve to disproportionately screen out older workers. Persons with longer work careers may appear more diversified and less “focused”. This can be a particular problem for older women who have re-entered the workforce after childrearing and have had to retrain. Older workers may seem too specialized if they have been doing a job for a long period of time. Of course, if someone’s experience is not relevant to the job, they may not be qualified and will not have to be hired. However, an older applicant should be attributed with just as much potential for redevelopment in a new area as a younger one. Finally, because older persons on average take longer to find a job and may have to accept alternative employment, it will not be unusual for an older applicant not to have worked in his preferred occupation for some time. This should not be an automatic disqualifying factor. Rather, consideration should be given to whether the time lapse has devalued his credentials.

An employer can always demonstrate a non-discriminatory reason for not hiring a candidate or preferring another candidate. Therefore, it is a sound practice, both from a human resources and human rights perspective, to develop up-front, objective and job-related screening criteria for job competitions, to score candidates relative to these criteria and to retain all records related to job competitions for at least one year after the competition has been completed.^[23] As well, as discussed earlier in this policy an employer can disqualify someone because of age, either directly or through a neutral rule that has an adverse impact, if it can justify the requirement as reasonable and bona fide using the three-step test set out above. However, it should be borne in mind that the decisions to date where employers have tried to justify turning someone away solely because of their age have shown that it can be very hard to do so, especially if the concern for the employee’s capacity is largely based on cost rather than on health and safety.^[24]

5.2 On the job

Due to current and anticipated labour shortages, many employers, economists and labour market specialists are beginning to stress the importance of promoting retention of older workers. Of course, ensuring an equal opportunity and discrimination-free work environment is one of the best ways to ensure that older workers will remain in the workforce longer.

Subject to bona fide requirements, denying or restricting employment opportunities or treating a worker differently because of age is a violation of the Code. Examples of unequal treatment because of age include but are not limited to:

Limiting or withholding employment opportunities including transfer, promotion and training opportunities.

Not assigning an older worker to certain tasks or projects or subjecting an older worker to an unwanted transfer because of age.^[25]

Performance managing older workers in a different way than other workers. This includes subjecting an older worker’s performance to a higher level of scrutiny but also failing to performance manage because of a perception that the older worker’s performance is linked to age or because of a belief that performance management is not necessary as the person will soon be retiring.

Not recalling someone from lay-off because of age.^[26]
Terminating someone’s employment because of age.^[27] Of course, employers are not precluded from terminating older workers, using the same performance management criteria as for any other worker, where there are legitimate performance concerns that are based on objective evidence about the employee’s ability to perform the duties of the job.

Statistical evidence regarding systemic issues in the workplace can constitute circumstantial evidence from which it may be possible to infer that discrimination probably occurred in an individual case.^[28]

Example: An organization was concerned about the aging of its employees and the fact that there would be a number of managers retiring within a 15-year period. Accordingly, recruitment practices were modified to meet the “long-term professional needs of the department.” Statistical evidence dealing with age distribution of employees showed a disproportionate number of employees under 40 and the vast majority of recruits under 30. The tribunal found that the organization had set about recruiting a younger work force and that the 43-year-old claimant who had been with the organization 7 years was not offered a promotion into a particular position, in part, because he did not fit the profile for the organization’s recruits into that position. There was “compelling circumstantial evidence of an organizational predisposition against promoting older internal candidates into ES positions.”^[29]

Older workers tend to experience disproportionate displacement or disadvantage as a result of workplace reorganization and downsizing. This can occur for a number of reasons such as an assumption that due to their age or the fact that they have been doing their job a certain way for a period of time, they will have more trouble learning new technology or procedures, a perception that they will not be willing to accept changes to terms and conditions of work such as reduced pay or different work hours, or a belief that it is more equitable to displace them as they can take early retirement. As well, reorganization and downsizing may simply be used as a means to “rejuvenate” the workforce by getting rid of older workers.

Example: Due to an economic downturn, a company was forced to lay off staff. The claimant, a foreman, had worked for the company for over 32 years and was 57 at the time he was selected for termination along with another foreman who was aged 56. Both were offered a generous retirement package. The two foremen who remained were younger than the two released. The vice-president had prepared a note indicating that the two older workers who were terminated were told of the need to reduce people and that they “hoped to keep people with career potential”. The tribunal found age discrimination on the basis of the good employment record of the claimant, the ages of those selected for lay-off compared to those retained and this statement which was found to be a “euphemism; its meaning concerns age.”^[30]

Example: A business that served the public opened a larger facility designed to handle a greater volume of clients and introduced a new computer system. Two female staff persons in their 50s were transferred to positions which represented a demotion. Younger workers staffed the positions that they previously held. In finding age discrimination, the tribunal noted that the employer had not provided the claimants a meaningful opportunity to demonstrate they were able to perform the new duties, failed to provide even a minimal training and didn’t give the claimants notice of the alleged performance concerns that were raised as a defence at the hearing. The tribunal noted that the employer’s belief about older workers’ capacity to learn and adapt to technological change was impressionistic and not a valid reason for changing the claimants’ duties.^[31]

The following factors will help guide any consideration of whether age discrimination has occurred in a workplace reorganization or downsizing:

Comparison of the performance of those who were selected for termination versus those who remained with the organization.

Statistical evidence indicating a disproportionate number of younger workers can suggest an organizational bias for younger workers. As well, an analysis of the ages of those who were selected for adverse treatment in a reorganization as well as an analysis of the ages of those who were not can be relevant circumstantial evidence that age was a factor in the company’s decision making.^[32]
Criteria that can be applied in a way that disproportionately impacts on older workers such as: flexibility, rate of pay, ability to adapt to change, ability to be trained, being a generalist vs. a specialist. An assessment of personal suitability that is based on subjective considerations is always vulnerable to scrutiny as it can result in stereotyping or unconscious biases being brought into play.^[33]
Indications that workers were selected for termination because of a perceived propensity to retire or because they are pension-eligible.^[34]

A determination that the organization deviated from a previous approach, such as using seniority.
Evidence of statements that can be interpreted as euphemisms for age such as “career potential”, “rejuvenate”, “renewal” etc.

On the other hand, there are ways in which employers can ensure that the decisions made in a workplace reorganization will be fair and non-discriminatory. Criteria should be objective and not based on subjective impressions about the particular worker’s enthusiasm, flexibility or willingness to adapt. They should be demonstrably related to the goals of the reorganization or the needs that have been identified by the company. Ideally, positions rather than people should be selected for elimination and those positions should not subsequently be refilled.^[35]

Example: A company decides that, due to decreased profits and the need to be more competitive in the marketplace, it will introduce a new, more automated production system. It identifies the number of positions that will be required to be staffed and what the duties of each will be. It also identifies the current positions that will no longer be required and why. It advises each person whose position has been determined redundant of this fact and how this decision was reached. It then invites all of these persons to compete for the new positions. It runs the competition using objective, age-neutral criteria and a scoring system which measures each candidate against the stated criteria. Past performance reviews are taken into account. The candidates with the best scores are selected and sent for training.

5.3 Retirement

Before December 12, 2006 the Code did not prohibit age discrimination in employment against persons aged 65 or older. As a result, policies requiring mandatory retirement at age 65 could not be challenged under the Code. This is now no longer the case. Persons aged 65 and older who believe that they have been discriminated against on the basis of age, including through mandatory retirement policies, may file a claim of discrimination on the basis of age.

This does not mean that employers cannot have retirement programs based on a certain age. Rather, it means that such programs cannot be mandatory, except for judges, masters and justices of the peace under the Courts of Justice Act, for whom there is a specific exemption under the Code.

In some occupations, employers may wish to impose mandatory retirement on workers who reach a certain age on the basis that being younger than that age is a BFR.^[36] For example, policies that require police officers and fire fighters to retire at age 60 are frequently used. In the past, before the new three-step test, such policies were found justifiable on the basis of evidence of a correlation between age and physical decline that could impact upon the ability to perform the essential duties of the job safely, combined with evidence that individualized testing is impractical. However, it should be noted that in light of the new three-step test articulated by the Supreme Court of Canada, it is no longer acceptable to rely on presumed group characteristics associated with aging. An employer seeking to justify mandatory retirement must show that individualized assessment, as a form of accommodation, is impossible in the sense that there is no method to do so, or that individualized assessment represents an undue hardship. Moreover, the British Columbia Court of Appeal has recently confirmed that mandatory retirement policies should be approached on a case-by-case basis with the employer bearing the onus of establishing that its policy is justifiable in the circumstances of its workplace.

Except in circumstances where mandatory retirement can be shown to be a bona fide requirement, collective agreements containing mandatory retirement provisions can no longer be enforced.

Early retirement packages are often offered as an incentive to promote voluntary exit from the workforce. This can have many benefits to all workers: older workers may be offered a lucrative incentive which will allow them to pursue other interests or ambitions while at the same time ensuring that fewer workers will involuntarily lose their jobs. When designed properly, early retirement schemes are appropriate and will not raise human rights concerns. Also, if an employer has a non-discriminatory reason for terminating an older worker and wishes to offer the option of early retirement, there is nothing to prevent it from doing so. However, as early retirement schemes, by definition, target older workers, great care must be employed in using them as a means to achieve downsizing objectives.

In some situations, using early retirement to encourage older workers to leave the organization can raise concerns from a human rights perspective. This will occur if there is direct or implicit pressure being applied to accept retirement. Furthermore, if the older worker does not accept retirement, is subsequently selected for termination and the reason for selecting him or her for termination is related to age, an organization may face a human rights claim.

Example: A company decides that it needs to reduce its workforce by 10%. Human resources reviews the files of all workers and identifies all workers over the age of 60. Each one of them is called in for a meeting with management and told that they are nearing retirement age and should accept an early retirement package so that younger persons won’t lose their jobs. They are warned that if they do not do so, their position may be selected for elimination in which case they will simply receive severance and lose the opportunity to receive the early retirement package. Under these circumstances, some older workers feel compelled to accept the offer despite the fact that they were planning to work longer.

The fact that a generous retirement package is offered does not defeat a claim of age discrimination if the early retirement option was not truly voluntary.^[37]

Employers can take steps to ensure that an offer of early retirement is not coercive:

Define the eligibility criteria for the voluntary retirement program and share them with all staff, irrespective of age, through a neutral medium such as a written document. A response deadline and a contact who can provide information should be provided so that those who qualify and are interested in the option can then decide if they wish to follow up on the offer without any pressure from management. Some employers even chose to offer similar voluntary exit incentive packages to persons who are not near retirement age.
Do not make any link between acceptance of the package and job loss. If the workforce is being downsized, indicate what the criteria will be for selecting the jobs that will be eliminated. Employees can even be assured that eligibility for the voluntary exit program will in no way influence decisions about job loss.

Conversely, an employee cannot claim age discrimination if the employer does not offer him or her access to the voluntary exit program because the employer still requires his or her services.^[38]

5.4 Pensions, benefits and seniority

The protections in the Code extend to pension and benefit plans. As well, other grounds of discrimination such as disability and marital status are often relevant when considering pension benefits.

Section 25(2) of the Code states that rights are not infringed by pension and benefit plans that comply with the Employment Standards Act and regulations. O. Reg. 286/01 under the Employment Standards Act regulates employment-related disability, medical, dental, drug, life insurance and pension plans. This regulation defines “age” as “any age of 18 years or more and less than 65 years”. This means that pension and benefit plans that differentiate based on age 65 cannot be challenged under the Code. The OHRC has publicly expressed its concerns regarding these provisions and recommended legislative change.^[39] The OHRC would encourage employers and unions to nevertheless develop and maintain pension and benefit policies and programs that comply with the spirit of the Code, do not use age-based criteria and are based on bona fide requirements.

The Regulation also permits other age-related distinctions in the provision of pension and benefit plans, for example, where age-related distinctions in contribution rates are made on an actuarial basis.

Sick leave plans that make benefits available based on age have been found to be discriminatory.^[40] Reduced pension benefits for early retirees have been found not to be discriminatory where the actuarial present value of reduced pensions for early retirees is at least equal to the present value of the deferred pension for those who wait until the age of eligibility for full pensions.^[41] Similarly, basing eligibility for pension benefits on reaching a certain age will not likely be considered discriminatory.^[42]

It is not permissible to use age to assign seniority when more than one employee is hired on the same day.^[43]

5.5 Accommodating the older worker

Older workers may require accommodation for reasons such as disability and the need to care for an ailing spouse. The OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate outlines rights and responsibilities with regard to accommodating workers with disabilities. In addition, the OHRC’s publication Human Rights at Work explains that an employer’s duty to accommodate on the basis of family and marital status extends to employees who have work absences due to family-related responsibilities and encourages flexible work arrangements to help employees balance work and personal life.^[44] These obligations exist regardless of the age of the employee. However, due to a relationship between age and disability, these needs may become more apparent as workers and members of their family age.

Flexible work arrangements also benefit older workers who may be experiencing a decline in capacity and provide for an easier transition into retirement. Traditionally, workforce participation has been seen as an ‘all or nothing proposition’; people either work full-time or are retired. However, moving from full-time work, spanning a lifetime, to the complete absence of work is a major change carrying with it social, psychological and financial implications.^[45]

In order to facilitate the transition from employment to retirement and to encourage older workers to remain in the workforce longer, there is currently a trend towards more flexibility and phased in retirement. Therefore, employers may want to consider measures such as:

flexible hours and conditions of work such as compressed work weeks (working longer days in exchange for a shorter work week), flex-time (flexibility in start, end and break times as long as an agreed upon number of hours are worked), tele-working (working from home)
part-time arrangements and job sharing, which allow for a transition into retirement while at the same time providing opportunities for other workers, e.g. a new parent who wishes to work part-time as well
employing workers who have chosen to retire on short-term contracts or as consultants.

As discussed earlier, the duty to accommodate requires designing a workplace that is inclusive of older workers. It also requires individualized assessment and accommodation to meet the changing needs and capacities of older workers. For example, if an older worker finds a physically demanding task challenging, the employer should either assign it to someone else, if it is not one of the essential duties of the position, or seek other ways in which to accommodate the worker.

^[17] TD Economics, Canada’s Talent Deficit (September 6, 2001), online: TD Bank Financial Group homepage <http://www.td.com/economics/index.html>.
^[18] N.C. Agarwal, Mandatory Retirement and the Canadian Human Rights Act (Prepared for the Canadian Human Rights Act Review Panel, October 1999) as cited in Time for Action, supra, note 7 at 39.
^[19] Ibid. See also S. Imel, Older Workers: Myths and Realities (Eric Clearinghouse on Adult, Career and Vocational Education, 1999), online: Eric Clearinghouse on Adult, Career and Vocational Education, Ohio State University homepage <http://ericacve.org>.
^[20] Older Workers: Myths and Realities, ibid.
^[21] See O’Brien v. Ontario Hydro (1981), 2 C.H.R.R. D/504 (Ont. Bd. Inq.) where a 40-year-old man was refused an apprenticeship and the board of inquiry concluded that age stereotyping was the proximate cause and therefore discrimination had occurred. Although the employer did hire persons in the 40 to 65 age range, it did not hire them for the apprenticeship program. The employer considered that age had relevancy when determining whether a person might adapt to certain job conditions such as menial tasks, minimal responsibility, low pay and shift work.
^[22] Requiring Canadian experience has been identified as a discriminatory barrier for newcomers to Canada; see Ontario Human Rights Commission, Hiring? A Human Rights Guide and Ontario Human Rights Commission, Human Rights at Work, 3^rd. Ed. (Toronto: Carswell, 2008), available online at http://www.ohrc.on.ca .
^[23] Persons who wish to file a human rights application with the Tribunal are generally required to do so within 1 year of the last alleged incident of discrimination, unless the delay in filing the claim has been incurred in good faith and has not caused substantial prejudice to any person affected by the delay (subsection 3 4(2)).
^[24] In Canada (Human Rights Commission) v. Greyhound Bus Lines of Canada Ltd. (1984), 6 C.H.R.R. D/2512 (Can. Trib.), affd 7 C.H.R.R. D/3250 (Can. Rev. Trib.), affd 8 C.H.R.R. D/4184 (F.C.A.) the employer was unable to establish that its policy of only hiring new bus drivers under the age of 34 was a bona fide requirement. The evidence of a relationship between age and inability to cope with stress was rejected. Air Canada did not succeed in justifying a similar requirement that pilot applicants over age 27 have greater qualifications than younger applicants. Air Canada sought to do so on the basis of public safety and economic factors; Air Canada v. Carson (1985), 6 C.H.R.R. D/2848 (Fed. C.A.).
^[25] See Andronik v. Guildford Golf and Country Ltd. (1993), 21 C.H.R.R. D/400 (B.C.C.H.R.) [hereinafter “Andronik”].
^[26] In Silzer v. Chaparral Industries (86) Inc. (1993), 20 C.H.R.R. D/155 (B.C.C.H.R.), the tribunal found that the 64-year-old claimant was discriminated against on the basis of age and a perceived physical or mental disability when he was not recalled to work after a layoff. The claimant’s history of medical problems was found to be a factor in his not being recalled and the employer suggested early retirement as a possible solution to the claimant’s perceived health problems. This possibility existed because of the claimant’s age; therefore age, in combination with perceived disability, was a factor in failing to recall the claimant.
^[27] In Kearns v. Dickson Trucking Ltd. (1988), 10 C.H.R.R. D/5700 (Can. Trib.) a 69-year-old salesman was terminated despite excellent performance. The first time the alleged reason for termination was raised was in the termination letter. The reason given suggested that there would no longer be a need for his position, however it was not declared redundant and was filled by a younger person. A case of age discrimination was successfully made out.
^[28] Chopra v. Department of National Health and Welfare (1998), 32 C.H.R.R. D/168 (F.C.J.).
^[29] Singh v. Canada (Statistics Canada) (1998), 34 C.H.R.R. D/203 at para. 226 (Can. Trib.) [hereinafter “Singh v. Statistics Canada”].
^[30] McKee v. Hayes-Dana Inc. (1992), 17 C.H.R.R. D/79 (Ont. Bd. Inq.) [hereinafter “McKee”].
^[31] Andronik, supra, note 26.
^[32] See Salter, infra, note 35 and McKee, supra, note 31
^[33] Singh v. Statistics Canada, supra, note 30 at para. 245.
^[34] In Salter v. Newfoundland (2001), 41 C.H.R.R. D/68 (Nfld. Bd. Inq.) [hereinafter “Salter”], the tribunal found that the factor of being a pension-eligible employee was considered in making the determination to declare the claimant redundant and that this was synonymous with considering his age. Age discrimination was found in the case.
^[35] In Salter, ibid. one of the factors that contributed to a finding of age discrimination was that the claimant’s position, though declared redundant, had been modified and then filled by a younger co-worker:

...the Board finds that William Clarke occupies either Eric Salter’s previous position ...or a modification of [his] previous position... This brings into question the propriety of the selection process for this position and the decision to declare Mr. Salter redundant. The fact that Eric Salter was told his position was abolished when it was not is a very significant factor in allowing this Board to conclude that his redundancy has more than a “subtle scent of discrimination”. [at para. 155]

^[36] Mandatory retirement at age 60 for police officers, fire fighters and a Chief Fire Prevention officer have been found to be a BFR; Large v. Stratford (City), supra, note 15 (Police Officers), Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297 (Chief Fire Prevention Officer), Hope v. St. Catharines (City) (1998), 9 C.H.R.R. D/4635 (Ont. Bd. Inq.) (Firefighters).
Mandatory retirement of school bus drivers at age 65 has been found to be a BFR as expert medical evidence indicated that, as a group, those over 65 are more likely to have accidents, and that it is impossible to test individually to determine who is likely to have health problems or create risks for others; MacDonald v. Regional Administrative School Unit No. 1 (1992), 16 C.H.R.R. D/409 (P.E.I. Bd. Inq.).
^[37] See McKee, supra, note 31.
^[38] See for example Boeing Toronto Ltd. v. CAW-CLC, Local 673, Arbitrator Kevin M. Burkett, Grievance No. W18/01, July 5, 2001.
^[39] See the OHRC’s Submission to the Standing Committee on Justice Policy on Bill 211, the Ending Mandatory Retirement Amendment Act, dated November 23, 2005, available online at www.ohrc.on.ca.
^[40] Heidt v. Saskatoon (City) (1988), 9 C.H.R.R. D/5380 (Sask. Bd. Inq.), affd 10 C.H.R.R. D/5808 (Sask. Q.B.), revd 12 C.H.R.R. D/387 (C.A.), leave to appeal refused 74 D.L.R. (4^th) vii (S.C.C.). The Saskatchewan Human Rights Code contained a provision that the prohibition on age discrimination in employment does not prevent the operation of any term of a bona fide group or employee insurance plan. The Court of Appeal held that the defence had not been made out as no evidence was led to establish that the discrimination was reasonably necessary to allow the employer to put into place a viable and cost-effective sick plan.
^[41] Younger v. Gulf Canada Resources Ltd. (1988), 10 C.H.R.R. D/6114 (Alta. H.R. Comm.).
^[42] For example, a Factor 80 retirement scheme.
^[43] Dalton v. Canadian Human Rights Commission (1985), 15 D.L.R. (4^th) 548 (T.D.), rev’d in part 25 D.L.R. (4^th) 260 (C.A.), leave to appeal refused 67 N.R. 158n (S.C.C.).
^[44] Ontario Human Rights Commission, Human Rights at Work, supra, note 22.
^[45] Broadley v. Steel Co. of Canada Ltd., supra, note 9 at D/412.