Speculation is not proof: Age discrimination complaint tossed in firing of 61-year-old worker

A concept image showing age discrimination. Illustration: HR Law Canada

Speculation doesn’t generally hold up well in front of decision-makers. A receptionist at a home health care company in Alberta, fired for poor performance, argued that her age — 61 — was the real reason for the decision to terminate her employment without cause.

But she had no hard evidence to back up that claim, while the employer had written statements from four of her colleagues that impugned her work.


MB began working for Caregivers Home Health Care on May 29, 2017, as a health care aide/home support worker in May 2017. She subsequently took a position as a receptionist.

Her employment was terminated, on a without cause basis, on Oct. 28, 2019. MB was 61 and alleged the decision to end her employment was related to her age. She filed a complaint with the Alberta Human Rights Commission.

Caregivers took the stance that the decision had nothing to do with her age but was taken as a result of concerns with her performance.

The director of the commission reviewed the complaint, and determined it should be dismissed. It noted that the act in Alberta has a one-year limitation period and the only event within that period was the termination on Oct. 28.

“The information does not support that your age was a factor in your termination.  The information does support that you had been made aware of issues in your job performance and that was the reason for the termination,” it said. “The comments and negative treatment you allege in the workplace is not sufficiently explicit to place it within the period defined by the limitation period.”

Request for review

MB sought a review of that decision. She argued that, with respect to the reasons for dismissal, she was not made aware of any performance issues. Further, four individuals who provided statements to that effect were friends of the company’s operations manager who made age-related comments to her.

The commission said the inference it drew was that MB alleged those four individuals lied in their written statements.

Caregivers pointed out that MB admitted in her complaint that she was told the reason for termination was “all the complaints.” It said the four individuals provided evidence of her poor performance, and there was no evidence of any bias on their part.

It also argued that the age demographics of its employees do not demonstrate a “dislike” for older staff.

The ruling

The commission said the allegations made by MB were based on assumptions or speculations.

“Only the decision-maker at (Caregivers) knows the reasons why (MB’s) employment was terminated and, more importantly, whether (her) age was a factor in the decision to terminate her employment,” it said.

“(She) was not, for example, told by (the employer) that her age was a factor in the decision to terminate, did not see any documents to that effect and was not present when the decision was taken.  In essence, she has no evidence that her age was a factor in the decision to terminate – she is assuming or speculating that it was,” it said.

While a simple denial by the employer that age wasn’t the reason is not enough — as the commission pointed out that rarely would a company admit such a thing — in this case it was able to point to four written submissions from workers about her performance.

There simply was no basis, outside of speculation, that age was a factor in the decision to end her employment, it said.

It upheld the director’s decision to dismiss MB’s complaint.

For more information, see Brown v Caregivers Home Health Care Inc., 2023 AHRC 59 (CanLII).