Both the Québec Charter of Human Rights and Freedoms (Québec Charter) as well as the Canadian Charter of Rights and Freedoms (Canadian Charter) provide for the right not to be discriminated against on the ground of age. In the context of employment, the Québec Charter prohibits discrimination based on age with respect to the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment.
Discrimination based on age occurs in the workplace when a distinction, exclusion or preference is made based on a person’s age or because such person belongs to a certain age group (youth, seniors, etc.). As such, absent reasonable justification, decisions and practices in the workplace that create discrimination based on age will be illegal under the Québec Charter. For example, the Quebec Human Rights Tribunal ruled in favour of a waitress wrongly dismissed because she apparently no longer corresponded to her employer’s youthful image (Commission des droits de la personne et des droits de la jeunesse c. 9063-1698 Québec inc., 2003 CanLII 40742 (QC TDP)).
In order to prove age discrimination, it is not necessary to demonstrate that a job-related decision was made solely based on age: it is sufficient to demonstrate that age constituted one of the grounds justifying the decision.
For instance, in Syndicat des professionnelles et professionnels du gouvernement du Québec et Québec (Ministère de l’Emploi et de la Solidarité sociale), D.T.E. 2011T-539 (T.A.), the employer denied the application of a 60 year-old candidate, because he wanted to rejuvenate his staff. In fact, the employer told the candidate that he was looking to bring fresh blood…The arbitration tribunal concluded that this constituted wrongful discrimination based on age and awarded damages.
Discrimination on the ground of age is prohibited “except as provided by law”. Indeed, in the field of labour relations, many laws and regulations authorize distinctions based on age. As an example, pursuant to the Act Respecting Labour Standards, no employer may have work performed by a child between 11 p.m. on any given day and 6 a.m. on the following day, except in specific cases. When such a law exists, an employee cannot allege discrimination on the ground of age under the Québec Charter.
Remedies are available for employees who believe that they are discriminated on the basis of age. Among them, the employee can file a formal complaint with the Human and Youth Rights Commission, which will conduct an investigation. The Commission may then recommend any corrective measures it deems appropriate and, if the employer fails to comply with them, can apply to the Human Rights Tribunal on behalf of the complainant to seek appropriate measures. Unionized employees can rely on the grievance procedure set forth in the collective bargaining agreement.
Moreover, employees have the right to continue to work notwithstanding the fact that they have reached or passed the age or number of years of service at which the employee should retire, for the reasons set out in the Act respecting labour standards. Therefore, an employer cannot dismiss, suspend or retire an employee, practice discrimination or take reprisals against them on those grounds.