Mandatory Retirement offends Charter: Federal Court – CARP calls for Parliamentary Action

For this reason, the Fly-Past 60 Coalition and CARP have called for legislative change to remove Section 15(1)(c)of the Canadian Human Rights Act. A Private Member’s Bill, C-481, to make that amendment, sponsored by Liberal MP, Raymonde Folco, passed Second Reading in December with all party support, and is the subject of Parliamentary Committee hearings February 10th. If successful in Committee, the Bill is expected to go back to Parliament for Third Reading and passage later in February, 2011.

The corresponding provision in provincial Human Rights legislation has been eliminated across the country.

The Vilven-Kelly decision is unique, in that it was decided on the basis of the equality provision of the Canadian Charter of Rights and Freedoms, being the first challenge heard on the mandatory retirement exemption to the general prohibition against age discrimination found in the Canadian Human Rights Act. That Act applies to thousands of federal jurisdiction employees, including those in the transportation industry (air, rail and shipping), the financial industries (banking and investment) and the telecommunications industries (including broadcast media and telephone).

It is also unique in that it deals strictly with the contractual aspects of mandatory retirement, not the competency aspects. Transport Canada, the federal government department that issues pilot licences and renewals, removed the maximum age requirements from pilot licensing decades ago, stating that in its view, the age restrictions offended the Charter prohibition against discrimination on the basis of age. Instead of selecting any specific arbitrary maximum age, licensing is based on regular recertification of both professional and medical competency, usually at intervals of not greater than six months for both.

Other professions, such as firefighters and police officers, for example, may still be subject to arbitrary maximum age restrictions under a separate provision of the Canadian Human Rights Act and the various provincial human rights legislation dealing with bona fide occupational requirements.

In August 2009, the Tribunal found that Section 1 of the Charter does not protect Section 15(1)(c)- the mandatory retirement exemption which has been found to contravene the Charter.

Some quotes from that August 2009 Rights Decision:

The Tribunal noted the “sea change in the public attitude toward mandatory retirement [para 21]” and that “mandatory retirement is nonetheless, an affront to the right to equality [para 39]” and found that the infringement of equality rights through mandatory retirement could no longer be justified.

[At para. 50], the Tribunal concludes: “Based on the above analysis, we have concluded that it can no longer be said that the goal of leaving mandatory retirement to be negotiated in the workplace is sufficiently pressing and substantial to warrant the infringement of equality rights.”

[At para 70] “In the Tribunal’s view, the negative effects of the infringement of depriving individuals of the protection of the Act outweigh the positive benefits associated with s. 15(1)(c). As a final observation, perhaps one of the most disturbing aspects of this provision was the one first noted by the Court in Vilven: it allows employers to discriminate against their employees on the basis of age so long as that discrimination is pervasive in the industry.”