TORONTO July 18, 2008: CARP is calling on governments to prohibit age discrimination in pension plans. CARP is responding to the Supreme Court of Canada decision released today in the case of New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45*.
The Supreme Court in a 4:3 decision held that despite the New Brunswick Human Rights Code prohibition against age discrimination, mandatory retirement would be permitted if there was a bona fide pension plan which allowed it.
CARP and many others have successfully advocated against mandatory retirement since it constitutes age discrimination. All provinces have amended their Human Rights Codes to prohibit mandatory retirement but all provinces and territories, except Manitoba, Ontario and the Yukon, still retained the exemption for pension plan provisions.
[QUOTE] “This makes no sense. Either we prohibit age discrimination or we don’t. We are encouraged by the dissenting opinion that age discrimination cannot be permitted simply because there is a pension plan. It is possible to read the minority opinion as challenging the constitutionality of the exemption but to be sure, the provinces and the federal government should amend their legislation to eliminate the exemption for pension plans”, said Susan Eng, Vice President, Advocacy of CARP.
The Supreme Court did not specifically rule on whether the exemption [Section 3[a] of the New Brunswick Human Rights Act] was unconstitutional. However, in a recent arbitration decision [Grievance #06-2 filed on behalf of Terry Kenny dated April 28, 2008 against CKY TV in Winnipeg], the arbitrator ruled in favour of the employee on the basis that the Canadian Human Right Code provision which still permits mandatory retirement was unconstitutional.
[QUOTE] “When ruling directly on the constitutionality of provisions that keep age discrimination in the form of mandatory retirement, judicial thinking [including the dissenting decision in this case] is more in line with most Canadians who expect to keep working in fulfilling careers, regardless of their chronological age. The Supreme Court was bound by the provincial legislation in this case so it’s up to the provinces and the federal government to amend their law once and for all”, added Eng.
[QUOTE] “CARP will be writing to every Premier and the Prime Minister to ask them to make a clear statement against age discrimination in all its forms by amending their legislation to remove the pension exemption for mandatory retirement and in the case of the federal Human Rights Code to prohibit mandatory retirement for federally regulated industries in the first place,” adds Eng.
*The case report may be found at: scc.lexum.umontreal.ca CARP’s open letter to the Prime Minister and Premiers Here CARP is a national, non-partisan, non-profit organization committed to advocating for social change that will bring financial security, equitable access to health care and freedom from discrimination; ensuring that the marketplace serves the needs and expectations of our generation and providing value-added benefits, products and services to members; and building a sense of community and shared values among our members in support of CARP’s mission.