Can You Be Forced To Retire?
What is the mandatory retirement age in Canada?
The answer is that there is none, and furthermore that employers are prohibited from setting any such policy. Requiring mandatory retirement or any other age-related discrimination is strictly prohibited by both the Ontario Human Rights Code as well as the Canadian Human Rights Act and the Charter of Rights and Freedoms.
It’s not just policies that run afoul of these rules. Employees in Canada are also protected from informal decisions that discriminate based on age, such as passing over an older qualified candidate for a position in favour of a younger one.
Can you be forced to retire?
However, like any protections against discrimination, there are limits. Employers who implement a policy that excludes people based on a protected ground, such as age, are said to have constructively discriminated against that group. In such cases, the employer may rely on the defence that the policy is in keeping with a bona fide job requirement.
Such was the case that Air Canada found themselves faced with in a recent court case upholding the Canadian Human Rights Tribunal’s decision to dismiss the complaints of several pilots who were subjected to a mandatory termination policy at age 60. The pilots retired between 2010 and 2012, just before the repeal of an exception in the Canadian Human Rights Act that allowed for mandatory retirement when the employee reached “normal age of retirement” for employees working in similar positions. The court ultimately upheld the Tribunal’s decision, finding that based on the appropriate criteria, 60 years old was the normal age of retirement for pilots in similar positions.
While that exception no longer exists, other policies adjacent to mandatory retirement remain even though such direct policies are not allowed. One example is that employers are permitted under the Ontario Employment Standards Act, 2000 to differentiate long-term disability benefits for employees over the age of 65.
How can Whitten and Lublin help?
Age discrimination can be complicated, as employees may not know for certain if they have been discriminated against, and employers may not know if their policies contravene the applicable human rights statutes. If you are an employee or employer looking for advice on navigating a potential age discrimination situation, Whitten & Lublin is here to assist you. Contact us online or by phone at (416) 640-2667.
Author – Aaron Zaltzman