What is Ahead for Employees After Mandatory Retirement Abolished...

Mandatory Retirement at the Federal level has come to an end on paper

It is to be seen how the Employers will implement this change, what hurdles the employees would end up facing.


The purpose of the Canadian Human Rights Act (CHRA) is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

R.S., 1985, c. H-6, s. 2; 1996, c. 14, s. 1; 1998, c. 9, s. 9.


Section 7 of the CHRA states:

"It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination."


Section 3.(1) of the CHRA states:

"For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status,family status, disability and onviction for which a pardon has been granted are prohibited grounds of discrimination."

The Canadian Human Rights Commission is an independent body established by Parliament in 1977.  It carries out its mandate at arms-length from the Government of Canada.

 

The Canadian Human Rights Commission administers the Canadian Human Rights Act and is responsible for ensuring compliance with the Employment Equity Act. Both laws ensure that the principles of equal opportunity and non-discrimination are followed in all areas of federal jurisdiction.

 

The Canadian Human Rights Commission and the Canadian Human Rights Tribunal are separate and independent entities.

 

THE SYSTEM EXISTS but then the process is time-consuming.

 

- It takes over a month from a call to the Intake department of CHRC to speak to an officer who sends out the Intake Kit to enable a complainant to file a complaint.

 

- It takes another couple of months before one receives an acknowledgement and somebody is appointed to handle the complaint.

 

- The next step is the Assessor's Report which can take six months to one year or more.
The report contains recommendations. The Report is sent to the concerned parties.

 

- Then the parties may go ahead and send their submissions, which are forwarded to the other parties for further comments.

 

- The Commission, based on the investigator's report and submissons received from the parties, reviews these documents.

 

- The Commission then makes a decision on the disposition of the case.

 

- The Commission can accept or reject the recommendation in the Assessor's Report.

 

- The Commission conveys its decision to the parties.

 

- Any of the parties can appeal the Commission's decision.

 

- If the Commission decides to refer the complaint to the Canadian Human Rights Tribunal, it can take upto a year for the Tribunal to hear the complaint and then additional time to make a decision.

 

WHAT HAPPENS IN THE INTERIM TO THE COMPLAINANT especially if  he / she has limited means as against the employer with UNLIMITED means and legal team to fight against the complainant?

 

We welcome your views on this based on your experience and / or that of others you may know about. The identity will be kept confidential for the sake of privacy.

 

Legislated Age Discrimination Ends - First Time the Bill Introduced in 1992

Air Canada fights on

Toronto, ON: CARP congratulates the government for keeping its election promise to end mandatory retirement at the federal level as a major step forward in eliminating workplace age discrimination.

Section 15(1)(c) of the Canadian Human Rights Act which permits mandatory retirement policies for federally regulated employees was repealed by Bill C-13, the Budget Implementation Bill which has received Third Reading in the Senate and only needs Royal Assent which is anticipated before the Christmas break. The change will take effect one year from the date of Royal Assent.

The repeal will finally bring employers and employees in the federal private sector into line with those in the federal public sector and all employers and employees in the provincial jurisdictions that repealed mandatory retirement years ago. This affects about 800,000 employees in federally regulated industries such as finance (banking), transportation (air, rail, inter-provincial trucking) and communications (broadcasting).

“CARP members will be gratified that legislated age discrimination is finally history. After 20 years of election promises by governments of all stripes, this government has finally eliminated mandatory retirement at the federal level. By itself, the repeal does not end workplace age discrimination, as evidenced by major employers still looking for ways to forcibly retire older workers, but this Parliamentary leadership will go a long way to ensuring that people are able to stay in the work force if they need to keep working or simply want the dignity of work”, said Susan Eng, VP Advocacy, CARP.   

Hard lobbying against bringing federally regulated industries into the modern age continued right up to the last minute. Royal Assent of the Bill will be celebrated by the 200 airline pilots who have been shouldering the cause in the courts.

“At the peak of our careers, after we have accumulated decades of experience and despite being certified competent by Transport Canada to perform the job, Air Canada tells us, ‘You are too old to work for us—go work for someone else.’  No matter how much we disagree with that affront to our human dignity, we are given no option by the airline or by our own union but to fight the age-based discrimination through the Human Rights Tribunal and the Courts.  Thankfully, that will now end for those whose employment is scheduled to occur next December, said Raymond D. Hall, retired Air Canada pilot and counsel for the pilots.

Attempts to repeal Section 15(1)(c) started with a Bill introduced in 1992, which died on the Order Paper when an election was called.  In 2000, the Canadian Human Rights Review Panel recommended that mandatory retirement in the federal sector be abolished.  The Chair of that Panel was the former Supreme Court of Canada judge who issued the 1990 decision upholding mandatory retirement. Earlier this year, a Private Member’s Bill to repeal the provision passed Second Reading in Parliament but it too died on the Order Paper when the election was called this Spring.

This change has been a long time incoming. Unfortunately, it comes too late for approximately 200 Air Canada pilots who brought this issue to public awareness with their Charter challenge. So far, they have convinced the Federal Court of Canada to find that the mandatory retirement exemption in the Canadian Human Rights Act violates the equality provisions of the Charter of Rights and Freedoms.  Since the exemption was still on the books when they were forcibly retired, they are still mired in litigation and appeals before the Canadian Human Rights Tribunal and the courts as they seek to regain their employment.

Mandatory Retirement is Abolished in the Federal Sector

Thursday, December 15^th, 2011

Bill C-13 received Royal Assent today. The Bill repeals Paragraph 15(1)(c) of the Canadian Human Rights Act, the mandatory retirement exemption to the general prohibition against age discrimination that has been in the Act since it became law in 1978. The repeal of the provision will come into force one year from today, on December 15, 2012.

Raymond Hall, retired Air Canada pilot and counsel for the pilots, writes on his Fly Past 60 website:

The repeal of this provision marks a watershed event for the Fly Past 60 Coalition. Although we had very little impact, if any, on the government's decision to see things "our way," there is little doubt of two facts. First, as Victor Hugo once said, "All the forces in the world are not so powerful as an idea whose time has come..." . Well, this idea's time came some time ago. But it came.

Second, it was our Charter challenge that brought this issue in the federal sector to the fore. We gave the government the impetus of the judiciary to say, "this is the right thing to do." And they did. After many, many attempts, they finally did.

So, now, we have effectively created two segments of Air Canada pilots, which is a new challenge for us. There are those who will turn age 60 after December 1, 2012, who will elect to leave their employment at a date and in the circumstances of their own choosing. And there are those who cannot benefit from this legislative change, who have been or will still be forced to leave their employment prior to December 1, 2012, and will have to persuade the Tribunal and the Courts that their termination of employment is contrary to law.

That fight is not over.

Finally, there is one more fight before us. In our view, this last fight is not nearly as significant as the prior fights, but it is significant, nevertheless. That is, Air Canada is still refusing to recognize the law. It is still asserting that the termination of pilots' employment at age 60 is a bona fide occupational requirement, by reason of the ICAO restirictions on the operation of flight by pilots-in-command who are over age 60. That fight continues, and we shall have more to say on it in due course.

With A Budget that May Not be Enacted - Blow to the Move to Eliminate Mandatory Retirement Age

Finance Minister Jim Flaherty's proposals, in the 'phony budget', as Globe and Mail Editorial calls it ( March 23, 2011), 'now highly unlikely ever to be enacted' had, in part, proposed elimination of the mandatory retirement age.

Bill C-481 passed Committee review and amendment on March 8, and was referred by the Committee back to Parliament for Third Reading and passage into law.

With the possibility of a call for an election, as the opposition is not likely to support the Budget, the proposal in the Budget to eliminate mandatory retirement age will not go further.

The Bill, which would have gone for Third Reading, would die with the termination of the entire session of Parliament.

Raymonde Folco, Liberal MP, who had introduced the Bill, had clarified this in February 2011, in her remarks to this project's co-ordinator. She hoped that the "Third Reading debate and passage will be completed before there (is) an election or Parliament is prorogued for any other reason.  As you observed, if this occurs, the Bill, along with any other legislation being discussed in Parliament will no longer exist."

There is need to continue mobilising support for ending the mandatory retirement age not only after the new government takes over in the next Parliament, but also during the campaign to emphasise to the candidates that they must support this measure when the Bill is re-introduced or the Budget is introduced.

Budget proposes to end mandatory retirement

March 22, 2011

Presenting the Budget in Parliament today, Finance Minister, Jim Flaherty promised amendments to eliminate the mandatory retirement age in federally regulated areas, such as banking, telecommunications, railways, and airlines, “unless there is a bona fide occupational requirement” for an age limit on a workforce.

Canadians employed in such federally regulated sectors as banking, transportation and telecommunications will be able to stay in the workforce longer regardless of collective agreements that stipulate a forced retirement age.

Only one exception to the mandatory retirement age will be maintained: a security and safety exemption that ensures commercial pilots, for example, can't fly into their 90s, a federal financial official said.


OTTAWA — Freedom 75? 80?

The federal government is ready to do away with mandatory retirement at age 65 in federally regulated industries.

The budget says the government will bring in legislation to change the Canadian Human Rights Act and the Canada Labour Code to prohibit mandatory retirement unless there's a real occupational requirement.

"This would allow Canadians to choose how long they wish to remain active in the labour force," the budget documents say.

A private member's bill which would do much the same thing has been slowly making its way through the legislative process.

Court decisions have upheld retirement laws in some industries, citing operational needs.

The budget papers say people are living longer, more active lives than ever.

"Those who wish to remain active in the labour force should be able to do so for as long as they desire, enriching the workplace with their accumulated knowledge and experience."

Courtesy: The Canadian Press

Parliamentary Committee Passes Bill C-481 With Two Expected Amendments

March 8^th, 2011

Bill C-481 passed Committee review and amendment today, and was referred by the Committee back to Parliament for Third Reading and passage into law. The Bill included two amendments. The first amendment allowed for an exemption of the Canadian Forces to the repeal of mandatory retirement. The second amendment allowed for a one year period from the enactment of the Bill until the coming into force of the Bill.

This event marks an extremely significant event, for not only was the Bill passed by the Committee and referred back to Parliament, it was passed in spite of an intense lobby, primarily by employers, to delay or kill the effect of the Bill upon any organization that provided its employees with a pension plan or pension scheme. The lobby failed on two counts, first to table the Bill pending further study of proposals by employer. Second, to defeat the passage of the amendments to the Bill and the referral of the Bill back to Parliament.

Referall of the Bill to Parliament at this point obviously does not guarantee passage into law. In addition to potential procedural delays prior to Third Reading, there is of course the prospect that the entire session of Parliament could be terminated with the call of an election. Be that as it may be, the referral to Parliament constitutes an immense step forward in the legislative process, and sets the stage for repeal of mandatory retirement in the federal jurisdiction, regardless of the continuance of this session of Parliament.

Federal Court Decison and Bill C-481 Hearings



Standing Committee Hearing, March 8, 2011 (mp3)

Saturday, February 19^th, 2011 - In -camera Hearings

The Parliamentary Committee reviewing Bill C-481 held a very short in-camera session on the morning of February 17th for the purpose of setting down a date for the remaining deliberation of Bill C-481. The Committee set the date of Thursday, March 8th. There apparently was no substantive discussion of the issues related to the Bill at Thursday's meeting.

Standing Committee Hearing, February 15, 2011 (mp3):

Part 1

Part 2

The Parliamentary Committee reviewing Bill C-481 heard from several six witnesses today, including representatives from ACPA.  As it turns out, the sparse 30 minutes for debate and amendment to the Bill was wholly insufficient to deal with issues raised in the testimony, including the proposed amendments. The Committee will meet again this Thursday, at 10:30 Eastern, to deal with a motion to table the proceedings and to reconvene at a later date, when testimony is available from witnesses to deal with a possible amendment to exempt employees of organizations that have bona fide pension plans from the entire scope of the general prohibition against discrimination on the basis of age. The likely date for the continuance of evidence appears to be March 3rd.

Standing Committee Hearing, February 10, 2011 (mp3):

Hour 1

Hour 2

The Parliamentary Committee reviewing Bill C-481 heard from several witnesses today, including George Vilven, Neil Kelly and our expert witness, Professor Jonathan Kesselment. Other witnesses included personnel from the Canadian Human Rights Commission and a representative of employer organizations in the federal transportation and communications industries. All witnesses spoke in favour of the Bill, namely, repealing mandatory retirement in the federal jurisdiction.

Federal Court Judicial Review Decision, February 3, 2011 :

2011 FC 120

The Federal Court released its decision in the 2010 judicial review of the August, 2009 Tribunal Vilven-Kelly liability decision. The Court dismissed Air Canada's and ACPA's application for judicial review of the Tribunal's Charter decision, but upheld the judicial review of the Tribunal's BFOR decision, in part, remitting the decision back to the Tribunal for reconsideration on the record. It should be noted that the BFOR decision, once re-decided, will affect Mssrs. Vilven and Kelly only, wherease the Court's decision on the Charter issue is now binding upon the Tribunal for all other Air Canada pilot mandatory retirement cases. This decision should expedite the remaining hearings before the Tribunal, but is very, very likely to be appealed by either or both Air Canada and ACPA, to the Federal Court of Appeal.

Courtesy: FlyPast60.com