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. 

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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.