Ageism, or discrimination in the workplace against seniors, is a well known issue in Western societies facing an older Baby Boomer population.

But the Times Online reports a case of age discrimination against a teenager.

Toronto lawyer Gary Wise says,

As mandatory retirement laws in the West fall by the wayside, will the practice of age-discrimination against the very young be next on the chopping block?

Earlier Age Discrimination Issues

Gosselin v. Quebec (2002) first raised the issue of a s. 7 violation of the Charter, where the Quebec government did not allow social security benefits for those under 30,

LIFE, LIBERTY AND SECURITY OF PERSON.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

McLachlin, J. stated in the majority that the evidence for this case was too slim to make a judgement on s. 7 violations, but did not rule out the possibility of economic and social rights being litigated in the future as part of the living tree approach to law.

Bastarache, J., in dissent, did not want to include economic rights.

A Broadening Dissent

But the broadest interpretation came from Arbour, J., who believed that Charter rights applied to positive as well as negative rights, citing Dunmore v. Ontario (Attorney General). The right to vote, be tried in a reasonable time or presumed innocent are not negative rights, but positive rights.

Ordinarily, the Charter does not oblige the state to take affirmative action to safeguard or facilitate the exercise of fundamental freedoms. There is no constitutional right to protective legislation per se. However, history has shown and Canada’s legislatures have recognized that a posture of government restraint in the area of labour relations will expose most workers not only to a range of unfair labour practices, but potentially to legal liability under common law inhibitions on combinations and restraints of trade. In order to make the freedom to organize meaningful, in this very particular context, s. 2(d) of the Charter may impose a positive obligation on the state to extend protective legislation to unprotected groups.

Arbour, J. would have included social and economic rights under the Charter, and potentially include the right to housing, work, health, and social security. But she distinguished social rights from property rights, because although they have an economic flavour, they are not protected by the Charter because they don’t go to the essence of human dignity and human needs.

She also agree that the legislature is the proper body to assert positive rights, but the courts can require government to maintain a basic level of positive obligations.

The distinction between those under and over 30 was a breach because they were unjustifiable, and the amount that Gosselin received in contrast to the poverty line in Montreal would also entail physical and psychological health risks.

A broad interpretation of s. 7 will likely become increasingly important in future Charter cases.