Ontario employers can no longer force their employees toquit workingat age 65. For example, an employer would be required to show that the objectives of its mandatory retirement program could not be achieved through individual testing and assessment of employees. One falls below acceptable levels of proficiency through inattention to medical advances and, inter alia, inadequate physical stamina and health.
While that Act did not limit its application to a maximum age, it contained a provision (s. 15(c)) which stated that it is not discriminatory to retire a person at the normal retirement age for their occupation. However, where, as in this case, the union’s interpretation would not result in any illegality, there was no reason to import the Code’s restrictions on the term ‘age’. It confounds logic to suggest that these concerns simply occur on the passing of a given day in all cases.[80]. 483 [hereinafter Stoffman].
Audience Relations, CBC P.O. Despite the decision in McKinney and the restricted definition of ‘age’ in the Ontario Code, it appears that in the labour relations context it may be possible to have an age-based mandatory retirement policy at age 65 ruled invalid. This ruling was sufficient to dispose of the case in favour of the hospital, but nevertheless the Court went on to consider whether there was a violation of s. 15 of the Charter. Unlike the situation in McKinney, the Alberta Individual Rights Protection Act did not have a maximum age. (4th) 408. He added that most of the peoplewho would benefit from theamendment are white-collar workers who could likely find work after age 65 even without the change. An amendment to the Ontario Human Rights Code goes into effect Tuesday to prevent seniors from facing age discrimination at work, and it makes mandatory retirement illegal in the province. 1103. University of Guelph, the Supreme Court of Canada considered the constitutionality of s. 10(1) of the Ontario Code, which limits protection from age discrimination in employment to persons between 18 and 65 and which therefore permits mandatory retirement policies for those aged 65 or over. for mandatory retirement. D/87, affd 22 C.H.R.R. Mandatory retirementwas already banned inseveralprovinces and territories, including Alberta, Manitoba, Quebec, Prince Edward Island, Nunavut, the Yukon and the Northwest Territories. In Cooper v. Canada (Human Rights Commission)[82], an express mandatory retirement defence contained in the Canadian Human Rights Act was unsuccessfully challenged. Persons aged 65 and older who believe that they have been discriminated against on the basis of age, including through mandatory retirement policies, may file a complaint of discrimination on the basis of age with the Ontario Human Rights … 451, the Supreme Court reached the same result with respect to the restrictive definition of age (between 45 and 65) in s. 1 of the British Columbia Human Rights Code.
L’Heureux-Dubé J.’s dissent rejects the notion that a person somehow becomes less fit the day after her 65th birthday: In McKinney, I expressed the view that forcing the end of a career based on age alone does not pass muster under the Charter, as age is surely not determinative of capacity or competence. Maximum age limits are used by employers to institute mandatory retirement policies at age 65 and these limits have been challenged under the Charter. In order to meet this test, employers must show that their mandatory retirement program was developed in good faith, is rationally connected to the nature of the work, and that it would be impossible to develop a non-discriminatory program without undue costs or health and safety risks. [83] Ottawa Hunt and Golf Club v. Hospitality and Service Trades Union, Local 26 (12 October 1996) (unreported LAC decision). CBC's Journalistic Standards and Practices.
Wayne Samuelson, president of the Ontario Federation of Labour, said he worries the government is preparing to increase the age at which people can access government pensions, since that is what happened in the United States and the United Kingdom after those countries abolished mandatory retirement at 65. Despite a holding that the university was not to be accorded deference, and although a legislative defence to discrimination should be construed narrowly, the court nevertheless found the scheme reasonable and justifiable in the circumstances. Medical practitioners do not become incompetent at a given age. Mandatory retirement at age 65 has been recognized as age discrimination for some time, but amending the Human Rights Code to protect workers has been controversial. Membership in vocational associations and trade unions. According to the Ontario government, there are 1.5 million seniors in the province, and the province will have 3.7 million residents over the age of 65 by 2031. [80] Stoffman, supra note 78 at 560-1. This should be contrasted with the two dissenting opinions in Stoffman. Therefore, the issue was whether the defence within the Act, which permitted employers to discriminate where it was “reasonable and justifiable in the circumstances”, applied to the scheme. Specifically, the Code prohibits mandatory retirement, protecting employees aged 65 or more from being forced to retire, except in those cases where the retirement age can be justified as a “bona fide occupational requirement”. Despite recognizing that there will be considerable variety between individuals as to the rate at which the skills and aptitudes essential to the practice of medicine deteriorate, the Court rejected skills testing or performance evaluations as an option. Jim Bradley, the Ontario minister responsible for seniors, said older workers have valuable experience to share, and deserve to be evaluated based on their performancerather than on assumptions about people their age. Persons aged 65 and older who believe that they have been discriminated against on the basis of age, including through mandatory retirement policies, may file a complaint of discrimination on the basis of age with the Ontario Human Rights Commission. There are many cases considering the issue, including several decisions of the Supreme Court of Canada. if the agreement attempted to contract out of the Code). Medical practitioners do not become incompetent at a given age. [77] In Harrison v. University of British Columbia, [1990] 3 S.C.R. This means that employers cannot make decisions about hiring, promotion, training opportunities, or termination on the basis of an employee’s age. As a result, policies requiring mandatory retirement at age 65 could not be challenged under the Code. But a forced retirement policy is arbitrary and simply sets a date for all this to occur. However, it was found to be a reasonable limit on the right and hence saved by s. 1 of the Charter[77].
Rather, it means that such programs cannot be mandatory, except for judges, masters, and justices of the peace under the Courts of Justice Act, for whom there is a specific exemption under the Code.
In some rare cases, employers may be able to defend mandatory retirement programs on the basis that they are bona fide occupational requirements. As of December 12, 2006, the Ontario Human Rights Code protects all persons aged 18 and over against discrimination in employment on the basis of their age. This is now no longer the case. The Supreme Court found that one of the objectives of the impugned section of the Code was to arrive at a legislative compromise between protecting individuals from discrimination and giving employers and employees the freedom to agree on a date of termination considered beneficial to both.