Worker in 70s told company going with 'younger people'
An Ontario employer must pay $20,000 in lost wages and extra damages for age discrimination when it fired him without warning in favour of “younger people.”
The now-78-year-old worker worked as a water taxi driver in Toronto harbour for more than 20 years. To be a water taxi driver, he had to have a restricted operator’s certificate (maritime), a powered vessel operator’s permit for the Port and Harbour of Toronto, and a small vessel operator proficiency training certificate from Transport Canada. He had worked at the Toronto Harbourfront in some capacity since 1980.
In June 2016, he left his job to join The Otter Guy (TOG), another water taxi company, for higher pay. His compensation included an hourly rate plus significant tips. TOG was a small company with untrained employees, so the worker trained them on handling the potentially dangerous operation of small boats in the harbour with members of the public on board.
Over the next two years, TOG didn’t indicate there were any concerns about the worker’s performance.
Fired in favour of ‘younger people’
On June 10, 2018, the worker arrived at the dock for work and the CEO of TOG asked him why he was there. The CEO told him that the company was going with “younger people now” and his services were no longer needed. The worker was shocked and confused, especially after a police officer approached him and asked why he was still there since he had been fired. The worker fully understood that he had been dismissed and left. He reported feeling upset and discriminated against.
TOG didn’t provide a letter of termination or statutory termination pay. He filed a human rights application alleging that TOG discriminated against him because of age when it fired him. TOG didn’t attend the hearing or mount a defence against the application.
The Ontario Human Rights Tribunal noted that the onus was on the worker to establish prima facie discrimination by proving three elements:
- he had a protected characteristic under the Ontario Human Rights Code
- he suffered a disadvantage or adverse impact
- the protected characteristic was a factor in the disadvantage or adverse impact.
If the worker was able to prove those elements, TOG would have to establish that there was a non-discriminatory explanation for the adverse impact – in this case, termination of employment.
The tribunal found that the worker’s evidence was straightforward and credible and, without any evidence from TOG contesting it, there was no reason not to accept it as accurate.
Test for discrimination
The tribunal also found that the worker’s age was a protected characteristic under the code and the termination of his employment was an adverse impact, satisfying the first two elements of the discrimination test. Given the credibility of the worker’s evidence that he was told that TOG was going with younger people and the lack of any argument from TOG disputing it, the tribunal accepted that the worker’s age was a factor in his dismissal.
As a result, the worker was successful in proving prima facie age discrimination, said the tribunal.
Since TOG didn’t participate, it was unable to establish a non-discriminatory reason for the dismissal or a bona fide occupational requirement. The tribunal determined that TOG violated the code when it fired the worker.
Based on the worker’s T4 and estimation of tips, the tribunal accepted that the worker would have earned a total of $10,000 in 2018 were it not for his discriminatory dismissal. The tribunal also found that the manner in which the worker was dismissed – the worker only understood he was fired when the police officer approached him – caused the worker, who was in vulnerable position due to his protected ground of age, extra injury to his dignity, feelings, and self-respect. This warranted damages for such injury, said the tribunal.
TOG was ordered to pay the worker $10,000 for lost wages and tips plus $10,000 for infringing his human rights. See Yanover v. The Otter Guy Inc., 2024 HRTO 731.
