Age discrimination not costly enough
Bill had worked at the waterfront harbour in Toronto driving water taxis since 1980. When he was 70, he changed employers to a new company that was paying higher wages. He earned $25 an hour plus significant tips.
The company he joined was small and Bill ended up training many of the employees. He never received complaints about his performance.
Two years after he started the job he showed up for his regular shift. The CEO asked him what he was doing there and Bill said he was there to work. The CEO jumped onto one of the water taxis and told Bill they were going with younger people now. That was all he said.
Bill was confused and shocked as he had no idea what was going on. He had spent 38 years working at the waterfront driving taxis. Bill did not leave the property immediately in his bewilderment and clearly the employer decided to call the police on this 72-year-old man.
A police officer approached Bill and asked him what he was still doing there since he had been fired. It finally sunk into Bill that he had been terminated. The employer never even gave him the courtesy of a termination letter.
The employer only intermittently involved itself in the tribunal process and didn’t show up for the final hearing. Probably because everything Bill said was true. Bill was unemployed for the season and between tips and wages he lost $10,000 and that was ordered to be paid to him. He also asked for $20,000 in compensation for injury to dignity, feelings and self-respect. This is called general damages.
That amount is a pittance. Bill probably only asked for $20,000 because the Ontario Human Rights Tribunal is very frugal with what it will usually award for general damages for violation of a human right. In my view, Bill should have been able to ask for $40,000 or $50,000 and expect that he would get somewhere near that.
The adjudicator considered the immediate impact of the discrimination, the complainant’s vulnerability, the degree of anxiety Bill experienced, including his humiliation, and the frequency of the conduct. Bill was awarded all of $10,000 in general damages.
I would like to be able to tell you that if Bill’s complaint had been discrimination on the basis of religion, gender, sexual orientation, colour or creed that he would have received a larger general damages award. That would be a lie.
It is a mystery to me why Ontario Human Rights Tribunal adjudicators are so stingy with general damages awards. Maybe it’s some sort of internal directive we don’t know about. Maybe it’s because the Conservative government has been in charge of appointing adjudicators for a number of years now.
I have also heard it said that it may be stuck in precedent. For decades, awards for general damages have usually been $30,000 at most and it is just easier to follow existing case law. Inflation seems to have no impact.
The Ontario Divisional Court has said human rights awards should not be just a fee or license to discriminate. No one was listening.
Whatever the reason, telling somebody that after a lifetime of work they can be tossed because they’ve grown too old should be worth a lot more. Until the Ontario Human Rights Tribunal gets serious about these awards, discriminating against employees will cost some money, but will still be affordable.
This article was originally published by The Hamilton Spectator.
