Canadian Charter of Right and Human Rights Act in Conflict

Mandatory Retirement is Age discrimination

The employees of "2% of the federally regulated employers" (as mentioned by Ed Komarnicki, Parliamentary Secretary to the Minister of Human Resources and Skills Development and to the Minister of Labour, in his speech opposing the Bill) are affected by "the myth of mandatory retirement," as Chris Charlton, MP Hamilton Mountain, ON, speaking on Bill C - 481 in the Commons said.  

They are being discriminated against based on the Canadian Human Rights Act which, in itself, is in violation of the Canadian Charter of Rights and Freedoms. 

Chris Charlton added, "In fact, there is no universal prohibition in place now that would stop all Canadians from working past the age of 65. People over 65 are working all over the country. They are university professors, doctors, lawyers and, as I look around this chamber, apparently quite a few politicians too.

"All Canadian provinces and territories have amended their human rights legislation to abolish mandatory retirement. Meaning, employees can no longer be forced to retire at the age of 65; an employer is not allowed to arbitrarily impose a contractual term or policy requiring an employee to leave the workplace at the age of 65."

Canadian Charter of Rights and Freedoms under Equality Rights states:

15.(1) 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.

The Canadian Human Rights Act ("CHRA")  subsection 9(2) states: "it is not a discriminatory practice for an employee organization to exclude, expel or suspend an individual from membership in the organization because that individual has reached the normal age of retirement for individuals working in positions similar to the position of that individual." 

Section 15(1)(c) of the CHRA, which applies to federally regulated employees, provides that it is not a discriminatory practice to terminate an employee because of age if that individual has reached the normal age of retirement for employees working in [similar] positions.

The Federal Court of Canada in its decision of April 9, 2009, following complaints by two Air Canada pilots, found that age discrimination violated the charter. 

For updates, please click here.

On the constitutionally of s. 15(1)(c), the Court disagreed with the Tribunal, finding that this provision contravenes s. 15 of the Charter and remitted the complaint to the Tribunal to determine, on the basis of the existing record, whether s. 15(1)(c) of the CHRA can be demonstrably justified as a reasonable limit in a free and democratic society within the meaning of the s. 1 of the Charter.
 

This was followed by a Human Rights Tribunal decision on August 28, 2009, which said, in part, that mandatory retirement was an affront to the right to equality and found that the infringement of equality rights through mandatory retirement could no longer be justified.

The decision has significant implications not just for aviation, but for all employees and employers deemed federally regulated, including those involved in transportation, banking and telecommunications.

The Air Canada Pilots Association is appealing the decision of the Canadian Human Rights Tribunal to the Federal Court of Canada on the question of mandatory retirement age for pilots.

The hearings are being held from November 22 to 25, 2010.

Bill C-481 was introduced in the previous session of Parliament in 40th Parliament, 2nd session, and was re-introduced in the 3rd session of 40th Parliament.  

Why Some People Need to Work Beyond 65

Mandatory Retirement is Age discrimination

The employees of "2% of the federally regulated employers" are being discriminated against. 

Many of the professionally qualified and experienced immigrants migrating to Canada are in the age group of 35 - 42 (maximum allowed for applicants at the time of application). It takes another couple of years or more before they arrive in Canada. This does not give them enough time to earn enough to save for retirement, especially when there are obstacles in them finding gainful employment in their chosen profession on the basis of which they have migrated to Canada. The new immigrants end up working odd jobs, such as labourers, security guards, drivers, pizza delivery drivers etc.

Not with enough money for retirement, they end up living hand-to-mouth or collecting Guaranteed Income Supplement which is an added burden on the public exchequer.

There has been a shift in demographics with people living longer as currently the life-expectancy is 78 to 80 years for males and females. There are some who have taken early retirement only to go back to work to jobs that are less demanding, do not pay as well, and are less secure.

Raymonde Folco said in the House of Commons, "Research shows that, according to current trends, abolishing mandatory retirement should not have a significant impact on the average age of new retirees or on the total number of years worked. For people concerned about the consequences—I have spoken to many of them—the research indicates that two-thirds of older workers choose to retire before age 65, 43% of all workers retire before 65 and the average retirement age for all workers was 61 in 1991. In addition, 11.8% of Canadians between 65 and 69 years of age were part of the labour force in 2001. Immigrants and women may remain in the labour force longer to build up larger pensions. Employers are better able to plan for turnover."

More and more people over the age of 65 are working beyond normal retirement age. This is due to people wishing to work longer and having the good health to work into retirement, but also due to fear over their financial situation, including fear that their existing pensions will not be enough to cover them throughout their retirement. There is increasing evidence that retired people are living in poverty due to shortfalls in their pension provisions.

There is the Damocles' sword hanging over the pensioners who periodically feel threatened with cuts (as much as 20% to 30% in some cases) at the time of negotiations for renewal of union contracts.

Daniel Paillé MP from Hochelaga, QC asks, “Are we able to live off our retirement pensions at age 65? I am the vice-chair of the Standing Committee on Finance. A number of people have come to see us here in Ottawa to tell us that they cannot retire at age 65 because of a lack of income. They want to be able to continue working to achieve their full potential, because they are fit …”

Some older people have postponed retirement while many others have become self employed.

Many pension funds have not done as well as expected in recent years, and the drop in the stock market has meant that people who had reached retirement age found themselves leaving work with a lot less money than they had expected. Some of these people were obliged to stay on at their places of work if they were permitted to do so, while others had to seek alternative employment.

After paying towards a pension all of their working lives only to find that their pensions were worth less than they expected, was a source of great hurt, and disappointment for many people.

Ed Komarnicki, Parliamentary Secretary to the Minister of Human Resources and Skills Development and to the Minister of Labour, though opposing the Bill, pointed out, "Today, approximately 10% of Canada's population continues to work after age 65. The average age of retirement in Canada is 62. Given these facts, it is worth noting that mandatory retirement policies in the federally regulated private sector currently affect very few employees in practice. How few are affected by the mandatory retirement? Less than 2% of the federally regulated employers. Among large employers with 100 employees or more, about 10% have a mandatory retirement policy. That is a major drop from about 25% in the late 1990s. Within the federal public service, the practice of mandatory retirement ended in 1986. There has been consistent progress." 

In that case, why not give an option to work to the employees of "2% of the federally regulated employers". 

Many countries are changing their laws to allow employees to work beyond the age of 65. The reasons for this are not all about giving greater choice to people in retirement or about personal development for the retired community. The reasons are more likely to do with, in part, the labour shortage that exists in many developed countries, in part because there are more older people in the labor market, and, more worryingly, because of the pension deficit.

Below is a link to the Canadian Human Rights Tribunal decision on November 8 which only applies to the two Air Canada pilots who have been fighting for last few years. That means every other pilot or employee, who wishes to work beyond the current discriminatory mandatory retirement age (60 for pilots and 65 for others), has to fight and wait.

Canadian Human Rights Tribunal Decision, November 8, 2010:

Vilven-Kelly Remedy Decision

Bill C-481 to do away with Mandatory Retirement

Mandatory Retirement is Age discrimination

Bill C-481: An Act to amend the Canadian Human Rights Act and the Canada Labour Code (mandatory retirement age)

To prohibit federally regulated employers — that is, private-sector employers subject to federal acts and regulations, as well as the federal public administration — from setting a mandatory retirement age.

This bill was introduced as a private member’s bill, the 40th Parliament, 2nd Session, by Raymonde Folco Liberal MP Laval—Les Îles, QC, and now it is before the 3rd Session. 

A feed of speeches and votes in the House related to Bill C-481.

All sorts of information on this bill—including the full text of the bill - is available at LEGISinfo, provided by the Library of Parliament. 

SUMMARY

This enactment amends the Canadian Human Rights Act and the Canada Labour Code to prohibit federally regulated employers — that is, private-sector employers subject to federal acts and regulations, as well as the federal public administration — from setting a mandatory retirement age.

Introducing the Bill, Raymonde Folco, Liberal MP, said:

"My bill has three main objectives. The first is to repeal subsection 9(2) of the Canadian Human Rights Act. This amendment would ensure that unions and federal employees' organizations would no longer have the ability to exclude, expel or suspend an individual from membership in the organization because that individual has reached the normal age of retirement for individuals working in positions similar to the position of that individual. To clarify, this means within the same professional group, but not necessarily in the same organization.

"The second objective is to replace paragraphs 15(1)(b) and 15(1)(c) of the Canadian Human Rights Act with the following for paragraph 15(1)(b):

"It will be possible to terminate the employment of an individual who has not reached the minimum age that applies to that employment by law or under regulations that may be made by the Governor in Council.

"The third objective is to repeal paragraph 235(2)(b) of the Canada Labour Code. By repealing this paragraph of the Canada Labour Code, the legislator is ensuring that the employer will be obligated to pay severance pay to an employee who reaches an age at which the individual is entitled to receive a retirement pension from a complementary pension fund.

BILL C-481

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

CANADIAN HUMAN RIGHTS ACT

1. Subsection 9(2) of the Canadian Human Rights Act is repealed.

2. Paragraphs 15(1)(b) and (c) of the Act are replaced by the following:

(b) employment of an individual is refused or terminated because that individual has not reached the minimum age that applies to that employment by law or under regulations, which may be made by the Governor in Council for the purposes of this paragraph;

3. Paragraph 235(2)(b) of the Canada Labour Code is repealed. 

CANADA LABOUR CODE

The bill itself is seeking to repeal subsection 9(2) of the Canadian Human Rights Act, to replace paragraphs 15(1)(b) and (c) of the Canadian Human Rights Act and, third, to repeal paragraph 235(2)(b) of the Canada Labour Code.

Subsection 9(2) of the Canadian Human Rights Act, Paragraphs 15(1) b and Paragraph 15(1)(c) of the Canadian Human Rights Act is contrary to the charter because it perpetuates the prejudice with the following statement:

an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual; 

In an attempt to align federal law with the Canadian Charter of Rights and Freedoms, Bill C-481 is designed to prohibit federally regulated employers – that is, private sector employers subject to federal acts and regulations, as well as the federal public administration – from setting a mandatory retirement age.

And from a judicial standpoint, Folco’s bill would correspond with the many court rulings which deemed mandatory retirement an infringement of human rights and fundamentally, a discriminatory practice.

Support Bill C-481 to do away with mandatory retirement

Mandatory Retirement is Age discrimination

Write to YOUR MP
With CARP E-VOICE you can find and email MP by adding your reasons (some suggestions are given below).

            Even if you wish to retire at 65 or earlier, let those who wish to continue
            have the option to do so.

As Paul Szabo  Liberal MP Mississauga South, ON, said in his speech on Bill - 481, "this bill in no way amends pension plans that organizations have established. Pension benefits and defined pension benefit plans lay out the number of years of service necessary to accrue the vesting that is necessary to get maximum benefits."

            

            It is important that Bill C-481 eventually passes and for that it is
            important to urge your MPs to vote in favour for the following reasons:

1. The Bill, once its provisions become law, will eliminate the discriminatory practice of forcing mandatory retirement upon capable, productive individuals who are currently working in companies and industries in the federal jurisdiction, for the sole reason that those individuals have reached an arbitrary age of retirement determined by their employer; 

2. In a country that should continue to value the professional contribution of its most experienced workers, it makes no sense whatsoever to force those workers to terminate their employment simply because they have reached an arbitrary age of the employers’ choosing, and not for any reason related to the knowledge, skill or capabilities of the individuals;

3. The Bill will have no effect upon professions where mandatory retirement is permissible by reason of bona fide occupational requirement—the Canadian Human Rights Act has an alternative provision that will allow mandatory retirement to continue in such circumstances;

4.  At a time when defined benefit pension plans and other pension plans are suffering from contribution shortfalls and their survival is in jeopardy, it makes no sense whatsoever to force employees who wish to continue working and who wish to continue contributing to the pension schemes to instead stop contributing to these schemes and start drawing benefits from the schemes;

5. The impugned mandatory retirement exemption in the Canadian Human Rights Act was enacted over 30 years ago, at a time when there were labour surpluses and no shortage of younger workers in need of acquiring jobs in the economy; today exactly the opposite is the case—there is a shortage of skilled labour at both ends of the employment spectrum.  Arbitrarily terminating the employment of skilled workers, against their will, creates unnecessary negative effects upon the workforce, including creating professional deficiencies and wholly unnecessary retraining costs;

6. Almost every other jurisdiction in Canada has recognized the counterproductive nature of mandatory retirement, and has repealed the exemptions within their legislative schemes that permit mandatory retirement;

7. The Federal Court has recently found that the mandatory retirement exemption in the Canadian Human Rights Act violates the equality provisions of the Charter of Rights and Freedoms (decision 2009 FC 36) ; and

8. The Canadian Human Rights Tribunal has recently found that the breach of Section 15 of the Charter of Rights and Freedoms by the mandatory retirement exemption in the Canadian Human Rights Act is not justified, pursuant to Section 1 of the Charter, and is of no force and effect (Tribunal decision 2009 CHRT 24).  Unfortunately, decisions of that Tribunal are not binding on other tribunals or upon itself, and as a result every individual whose employment is wrongfully terminated by reason of this offensive provision in the Canadian Human Rights Act is forced to bring a separate complaint before the Canadian Human Rights Commission and take that complaint through adjudication at the Tribunal in order to gain reinstatement of employment;

For all the above reasons, I strongly urge you to contact your Member of Parliament, to vote in favour of Bill C-481. Ask your family members and friends to email MPs.

This is a battle worth fighting to secure your future.