An issue we discuss in my employment law course is how employees can prove discrimination claims, since the employer will almost always give some other business reason why the action has been taken. This is indeed a problem with a complaint-based model. Employees or applicants don’t usually know the precise reason for an employer decision, since they are not in the room when decisions are made. But employees/applicants have suspicions. The human rights tribunal have to sort out what is the real reason and is it related to discrimination.
Sometimes there is a smoking gun. That was the case here. The sharp pencils at CIBC retained a head-hunter to replace the dismissed employee and sent a job description to a head-hunting firm that included the line: “seeking younger, entrepreneurial profile (not a headline profile rainmaker).” That was enough evidence for the Tribunal to conclude that the dismissal of the 42 year old was related to a preference for a younger (i.e. cheaper) employee. A decision will come later on the remedy.
By the way, would it be illegal for a head-hunter firm in Canada to comply with a request by a client to send only ‘young’ workers (or only women, or only white people, etc)? Check out Section 23(4) of the Ontario Human Rights Code. Does this answer that question?