HRPA Ottawa Law Conference Age in the Workplace Dan G. Palayew, Partner Heenan Blaikie LLP June 21, 2013
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4 Boomers, Xs and Ys Oh My! Baby Boomers AKA: Boomers, Me Generation 1946 to 1964 Generation X AKA: Baby Busters, Slackers, The Sandwich Generation 1965 to 1980 Millennials AKA: Generation Y, Generation Next, Echo Boomers 1981 to
General Population 2001 5 Canada s population will undergo considerable aging in the 21 st century: Fertility rate below replacement rate Increased life expectancy due to improvements in public health Estimated average annual growth of population from 2001 to 2021: All ages: 0.9% 15-44: 0.1% 45-64: 1.5% Growing percentage of population 65 and over: 12.7% in 2001 14.4% in 2011 17.9% in 2021 Source: Calculation from Statistics Canada s Population Projections for Canada, Provinces and Territories 2000-2026. Cat. No. 91-520 2011 2021
Percent of the employed labour force who are over 50 years of age. Canada: 1990 to 2011 6 app 98,000 workers app 271,000 workers app. 1,6 mill workers app. 3,6 mill workers Source: Canadian Labour Force Survey
7 Summary Older workers are an increasing proportion of the labour force More older people More wanting to work In Canada, 12.4% of people over the age of 65 are working (up from 6% in 2000) These trends will likely further increase as more workers choose not to retire
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Legal Issues 9 1. Hiring 2. Mandatory Retirement? 3. Severance / Termination
The Law 10 Ontario Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability Ontario Human Rights Code Federal For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted Canadian Human Rights Act
11 Undue Hardship Supreme Court of Canada says: More than mere negligible effort is required to accommodate. The use of the term undue infers that some hardship is acceptable; it is only undue hardship that satisfies this test. To show that standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees without imposing undue hardship upon the employer. What is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances.
12 Undue Hardship Six factors: 1. Financial cost 2. Safety 3. Interchangeability of the workforce facilities 4. Impact of Collective Agreement 5. Size of employer 6. Employee morale?
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1) Hiring Human rights considerations Human Rights prohibitions apply to job advertisements, job applications and to interviews for employment. 14 Human Rights prohibitions also apply to employment agencies in screening and referring candidates for employment.
Hiring Human rights considerations (cont d) Exception: Setting a qualification or asking a question concerning a prohibited ground is permissible where the discrimination is a bona fide occupational requirement. 15 Examples: Gender (for personal care attendant), absence of criminal record (for workers with children and vulnerable persons) Age
Hiring Human rights considerations (cont d) Caselaw 16 Bastide v. Canada Post (2005) (Fed. Ct.) Shaw v. City of Ottawa (2012) (HRTO)
Hiring Human rights considerations (cont d) There are dangers when selecting or rejecting candidates based on subjective or soft considerations. 17 Spark, style and enthusiasm Overqualified for the job
Practical Tips 18 Be careful of what you ask and what you ask for Be careful of when you ask it and ask for it
2) Mandatory Retirement: The End 19 Wave across the country Quebec 1982 Ontario, December, 2006 Federal: Bill C-13, December, 2012
Why? 20 Why 65? Health / life expectancy Economic Social Personal
Caselaw 21 Firefighters: OHRC v. Etobicoke (1982) (SCC) Police: Large v. Stratford (1995) (SCC) Bus drivers: Ensign v. Clearview (1998) (AHRT) Pilots: Viven and Kelly v. Air Canada
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3) Severance and Termination Issues 23 Statute Ontario Employment Standards Act, 2000 Canada Labour Code Common Law Reasonable notice Age Length of service Nature of position Availability of comparable employment Duty to mitigate
24 Human Rights Impact Cannot be discriminatory Taint Theory 0.00001%
25 Where and How Bad Forum Tribunals Arbitrators Courts Remedies Tribunals Arbitrators Courts
26 Caselaw Courts Bardal factors again Duty to mitigate Availability of comparable employment Nature of position Length of service Age Hussain v. Suzuki Canada (2011) (OSC)
Caselaw (cont d) 27 Human Rights Tribunals McKee v. Hayes Dana Inc. (1992) (OBOI) Clennon v. Toronto East General Hospital (2008) (OHRT)
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Early Retirement Packages 29 Damned if you do: Watson v. CAW (2011) (OHRT) Damned if you don t: Kovacs v. Arcelor Mittal Montreal (2010) (OHRT)
Practical Tips 30 Communication Ongoing performance management Periodic testing
Practical Tips (cont d) 31 Alternative working arrangements Incentives to stay Incentives to go Working notice
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