Ex-Hamilton firefighter cries foul over mandatory retirement rule

This article was published by The Spectator on March 5th 2012.  To see this article and other related articles on The Spectator website, please click here.

Eian Gill has filed an Ontario Human Rights complaint after being forced to hang up his boots at age 60

A former Hamilton firefighter has appealed his forced retirement to the provincial human rights tribunal in a case that could put the heat on cities across Ontario.

Eian Gill reluctantly ended his 36-year career at age 60, the mandatory retirement age for full-time, front-line firefighters in Hamilton and many other Ontario cities.

“I sure didn’t want to stop. I loved that job,” said the former fire captain, now 62, who lives in St. Williams. “I kept myself in shape. I feel like I was doing my job as well or better than at any other time in my career.”

Now, instead of fighting fires, Gill is battling what he sees as age discrimination. At first glance, it looks like an uphill battle.

The provincial human rights tribunal dismissed a similar age discrimination complaint in 2008 from a London firefighter in the name of safety, ruling age is an appropriate determinant of heart attack risk for firefighters. In 2011, the Ontario government announced all municipalities must adopt mandatory retirement at 60 for front-line firefighters within two years. (Cities with collective agreements enshrining a different age deadline are exempt.)

But Gill and his lawyers are basing a new appeal in part on an apparent contradiction in Hamilton retirement provisions.

While full-time firefighters in Hamilton have mandatory retirement at 60 built into their collective agreement, volunteer firefighters can work until age 65.

“How can you argue for mandatory retirement by age in the name of safety if you terminate one group (of firefighters) at 60 and another group at 65?” asked Wade Poziomka, Gill’s Hamilton lawyer.

Gill, who worked from the Ancaster fire station at the end of his tenure, said he would occasionally respond to rural fires and find himself working shoulder-to-shoulder with volunteer firefighters aged 60 or older.

“A firefighter is a firefighter is a firefighter,” he said. “If you can still do the job and handle the training, why push someone out the door?”

Poziomka also said he intends to argue there is better medical evidence available related to cardiac health in firefighters since the tribunal dismissed a similar complaint in 2008.

Poziomka said using age as a “crude cut-off line for retirement” ignores the potential danger of heart attacks in much younger firefighters. “You could have people who are 60 who are in great shape and you could have people who are 50 who are … at a high risk for a cardiac event,” he said.

The city says the average age of a full-time Hamilton firefighter is 45; for volunteers, it’s 39. Hamilton’s fire chief Rob Simonds said he wouldn’t comment on mandatory retirement because Gill’s complaint is before the human rights tribunal.

Ditto for Henry Watson, president of Local 288 of the Hamilton Professional Firefighters Association. “Right now, it’s the law,” he said of the incoming provincial rules, which were supported by the union. “If the law changes, we would respect that.”

The Ontario Association of Fire Chiefs estimates 11 per cent of all officers in volunteer fire departments are 60 or older. Some full-time firefighting forces, notably Toronto, have a retirement deadline of 65 rather than 60 in their collective agreements.

The association asked the province last year to let municipalities choose their own mandatory retirement deadlines, suggesting the one-size-fits-all rule could cause “operational problems” and unforeseen pension costs.

At the same time, the association says full- and part-time firefighters should be treated alike under any new legislation. “They are trained to the same standard, they face the same dangers,” the association said on its website in response to Ontario’s new mandatory retirement law.

Poziomka said other retired firefighters around Ontario have expressed interest in Gill’s case, including a group of firefighters in Mississauga that has launched a separate human rights complaint. He thinks the cases would be lumped together if the tribunal agrees to hear the issue — a decision the lawyer expects soon.

Gill is also hoping to benefit from related cases at the federal level.

His Winnipeg co-counsel, Raymond Hall, is representing Air Canada pilots in an age discrimination challenge related to mandatory retirement that is awaiting a decision from the Federal Court of Appeal.

The lawyers have also filed a notice of constitutional challenge related to the province’s new mandatory retirement legislation.

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Postscript: In reaction to comments received on the story, Eian Gill has posted the following comment on the story about his case (March 8th, 2012):

Thank you,  I would like to thank all the people for reading and commenting on my case.  There are a few mis-conceptions that I would like to offer some insight on.  Someone mentioned that if a person has a full pension they should retire.  That is a good thought.  I fortunately or unfortunately found myself in a position where I was in a position to challenge this law.  A number of firefighters who followed me do not have full pensions but in their late 50’s by the time they retire they will not be able to challenge this discriminatory law.  They will be living with pensions of as little as 30% of what they were earning. I am aware of one of those firefighters who has been forced to retire, who started later in life as a firefighter and has lost his home because of a very small pension while he is still capable of doing the job.  There is a further belief that firefighting is solely about a strong back.  Indeed that does help, but firefighting has become a very technical field.  Vehicle extrication, hazardous material, technical rope rescue, and medical rescue are just a few of the things that firefighters are required to have knowledge of.  They do all those things while carrying 20 kilograms of personnel equipment.  Those senior firefighters with that knowledge keep those junior firefighter alive so that they will enjoy their retirement. Firefighters in the US on pension are being asked to take a cut in benefits.  There is a belief that should I win my case to stay past 60 that in some way this will force other firefighters to work past 60.  This could not be further form the truth.  Firefighters ‘purchase’ a retirement plan.  They pay a premium to retire at age 60.  They will continue to purchase and pay for that plan.  Firefighters in Toronto routinely retire at age 60 even though their contract allows full time firefighters to retire at age 65 and will continue to allow that well into the future.  Should they decide that it is in their best interest to work past age 60 for what ever reason that will in no way affect others on the job.  Except for the fact that their delayed  taking of pension benefits will make those benefits more likely to be available for those younger people coming behind them rather than an empty retirement bank account that ‘forces’ them to work on past 60. Bill 181 does not provide or ensure any age rights for firefighters.  It simple takes away their rights and limits their options to take care of their families.

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