Working overtime: mandatory retirement in Canada.
While some of us dream of "Freedom 55", there are others who can't imagine giving up their careers based on an arbitrary age of retirement, and believe retirement should be a choice, not a given. However, mandatory retirement does exist in Canada, in one form or another, and whether you are forced to retire, and when, may depend on where you live.
Legislation Across Canada
There are actually no laws in Canada that force a person to retire. Indeed, the federal and most provincial governments have prohibited age discrimination in their human rights legislation. So, how do mandatory retirement policies exist at all?
Civil servants who work for the federal government cannot be forced to retire. However, for non-civil servants who work for an employer within a federally regulated industry, an exception is permitted at the normal age of retirement for employees working in similar positions, therefore allowing mandatory retirement.
Quebec and Manitoba
Since 1982, Quebec's legislation has provided that employees could work as long as they wanted to, regardless of the practice of the employer relevant to persons their age, or the terms and conditions of a retirement plan.
Manitoba has also prohibited mandatory retirement since 1983, with no exceptions for retirement or pension plans or collective agreements. However, there are legislated exceptions for the University of Manitoba and Brandon University to enter into collective agreements that impose mandatory retirement after age 65.
Alberta prohibits against age discrimination, but allows mandatory retirement for reasonable and justifiable circumstances, (which may include the consideration of the existence of a policy in collective agreements), or if it is in a bona fide retirement or pension plan, or if it is a "bona fide occupational requirement", or BFOR.
A BFOR is an employment condition that discriminates on a prohibited ground, such as age, but is allowed because of the nature of the employment.
Nova Scotia public servants cannot be forced to retire. However, outside of the public service, Nova Scotia allows age discrimination if it is in a bona fide retirement or pension plan, or within the terms or conditions of a bona fide group or employee insurance plan.
Interestingly, the Nova Scotia Human Rights Act also provides that the express prohibition against age discrimination does not apply to prevent a bona fide plan, scheme, or practice of mandatory retirement, which seems contradictory to the prohibition against age discrimination. A private member's bill to remove this exception was introduced in 2005, but went no further than the first reading.
New Brunswick also allows age discrimination if an employer can prove that it is a BFOR, and if it is contained in the terms or conditions of a bona fide retirement or pension plan, a bona fide group or employee insurance plan, or the operation of those terms or conditions that have the effect of a minimum service requirement.
Amendments were introduced in 2005 to remove the exception of a BFOR, and to qualify the provisions with respect to retirement and pension plans, but it did not proceed and similar legislation has not been reintroduced.
Prince Edward Island
In PEI, age discrimination in any form, young or old, is not allowed unless it can be justified as a BFOR. There are no exceptions for retirement or pension plans, or group or employee insurance plans.
Nunavut, Northwest Territories, Yukon
All three territories do not allow discrimination based on age, with the following exceptions: Yukon, if a BFOR; Nunavut, for genuine retirement or pension plans and if a BFOR; and the Northwest Territories, for bona fide retirement or pension plans, and if a BFOR.
Ontario, until recently, did not protect against age discrimination for those less than sixty-five years of age, but this has changed as of December 12, 2006. As of that date, no employment contract or collective agreement is permitted to include mandatory requirement provisions (except if it is a BFOR), and further, any mandatory retirement provisions in existing collective agreements are no longer enforceable. There are also no exceptions for pension or retirement plans, although service or contribution caps will still be allowed.
Newfoundland & Labrador
Newfoundland & Labrador currently has no protection against age discrimination for those over the age of 64, and earlier if it is a BFOR, or if it is provided for in a retirement or pension plan. However, on May 26, 2006, the Legislature passed amendments to its Human Rights Code eliminating the age limit, (to come into effect on May 26, 2007), although these amendments will not affect the BFOR or retirement/pension plan exceptions.
Saskatchewan and British Columbia
Saskatchewan and British Columbia are the last bastions of mandatory retirement; as both provinces currently have no legislated protection for discrimination against employees over 64. As well, both allow age discrimination prior to age 65 if an employer can prove it is a BFOR.
Saskatchewan, however, recently introduced Bill 9, An Act to amend the Saskatchewan Human Rights Code and to make consequential amendments to other Acts and to The Public Service Regulations, 1999, on November 6, 2006. If this amendment comes into force, it will change the definition of age in the Saskatchewan Human Rights Code to include persons over 65 years of age, (although the current BFOR exception will continue).
The B.C. Human Rights Code also allows age discrimination in a bona fide scheme based on seniority, and as it relates to a bona fide retirement, superannuation or pension plan, or bona fide group or employee insurance plan.
Even though the B.C. Code allows mandatory retirement policies, the B.C. Court of Appeal recently struck down such a policy for being contrary to the Charter. Therefore, employers that are subject to the Charter can no longer assume a policy legal just because it complies with the Code.
Finally, on March 27, 2006, Notice of Motion 57 was approved in the B.C. Legislative Assembly, encouraging the government to end the practice of mandatory retirement. However, no proposed amendments have followed as of January 18, 2007.
The Case Law
Most of the challenges against mandatory retirement have been made alleging a violation of section 15 of the Charter. Section 15(1) of the Charter provides, "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability."
However, legislative provisions or policies that discriminate contrary to section 15 can be saved if it is found that they are justified pursuant to section 1 of the Charter which states, "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
The Supreme Court dealt with mandatory retirement challenges in four cases in 1990, the most recognized being McKinney v. The University of Guelph. As expected, the Court recognized that human rights legislation that allows discrimination over the age of 65 was contrary to s. 15 of the Charter.
However, the majority of the Court then held, largely based on socio-economic justifications such as the need for employment opportunities for younger workers, a renewed workforce, and the protection of retirement with dignity, that such age discrimination was justified as a reasonable limit prescribed by law within s. 1 of the Charter.
In 1992 in Dickason v. The University of Alberta, a similar challenge was made against Alberta's human rights legislation. Again, the majority of the Court accepted similar justifications for mandatory retirement to find that it was justified under s. 1 of the Charter.
However, since McKinney and Dickason were decided, much has changed. Almost every week in the media, there is an article about under-funded pension plans and looming labour shortages. This is because as the baby boomers reach retirement age, the number of young workers to replace these potential retirees is shrinking. Furthermore, the trend is towards greater protection for human rights, and more flexible employment arrangements, not less.
Prowse J., speaking for the majority of the British Columbia Court of Appeal, recently noted in the case of GVRD that the McKinney decision was not intended by the Supreme Court of Canada to be a determination of the issues for all time. She stated, "There are intimations in the majority reasons that the issue should be revisited in the future. Since it is now 11 years since McKinney was decided, and since the issue of mandatory retirement is one of considerable importance and concern in our society, I respectfully suggest that the time for revisiting the issue is upon us."
That decision was not appealed to the Supreme Court of Canada, however, nor has a similar case been appealed since. Obviously, the legislative trend is the elimination of mandatory retirement exceptions. It will be up to the courts, however, to determine if the rationale from the cases in the 1990s continues to prevail, or if mandatory retirement has seen its last days.
Practically speaking, however, given the expected labour shortages in the near future, employers may be less inclined to enforce mandatory retirement policies than they used to. We may all be working overtime.
Leah Fitzgerald and James Casey, Q.C. are lawyers with the firm of Field LLP in Edmonton, Alberta.
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|Title Annotation:||Feature Report on Older Adults and the Law|
|Author:||Fitzgerald, Leah; Casey, James|
|Date:||Mar 1, 2007|
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