Legislation to Ban Mandatory Retirement Introduced

By Yosie Saint-Cyr, Editor at HRinfodesk---Canadian Payroll and Employment Law, June 2005

On June 7, the Ontario government introduced a long-anticipated Bill to ban mandatory retirement. When enacted, the legislation will reverse workplace policies and collective agreements that allow businesses and unions to discriminate against older employees and force them to leave their jobs when they turn 65.

The proposed Bill was the result of lengthy consultation with business, labour and other interested stakeholders. It will amend the Ontario Human Rights Code and other statutes that allow mandatory retirement. For example, the Human Rights Code does not currently protect people 65 and over from age discrimination for employment purposes. As a result, employees can be forced to retire at 65, and those who continue to work lose protection against age discrimination.

If enacted, the government will provide employers with a one-year period to adjust to the changes and review their workplace policies, practices and collective agreements to ensure compliance. Mandatory retirement would be eliminated exactly one year after the legislation receives Royal Assent.

The Bill aims to end mandatory retirement without undermining early retirement rights or existing benefit and pension plans. Ending mandatory retirement would allow employees to choose when they want to retire based on their lifestyles, circumstances and priorities, and allow those who wish to continue to work past age 65 to do so. The Bill’s key provisions are as follows:

• Mandatory retirement would continue to be justified where it is a "bona fide occupational requirement" (BFOR) determined under the Human Rights Code, where, because of the nature of a job and performance of essential duties, it is a requirement that employees be required to stop working at a specified age (which could be 65 or even younger). In such cases, the employer must show that:
• An age-based job requirement or qualification is a BFOR
• The employee does not meet the job requirement or qualification
• The employee could not be accommodated without causing undue hardship to the employer
• Unions and employers would still be able to negotiate voluntary retirement incentives (i.e. early retirement packages)
• Employees could continue to be members of pension plans and accrue benefits past age 65 subject to service or contribution caps. Ending mandatory retirement would not have an impact on pension benefits already earned
• Legislation to ban mandatory retirement would not affect employees’ entitlement to access CPP at age 65
• The current provision in the Employment Standards Act that prohibits employers from discriminating based on age when providing benefits to employees aged 18 to 64 would remain in place following the coming-into-force legislation
• Employers wishing to dismiss an employee aged 65 or more would have to provide termination notice or pay-in-lieu unless the mandatory retirement policy could be justified on BFOR grounds
• Entitlements under the Workplace Safety and Insurance Act, 1997, would not change. Injured workers aged 63 or older at the time of injury would continue to be able to receive loss of earning benefits for up to two years. Workers younger than 63 would cease to receive loss of earning benefits at age 65

Ending mandatory retirement would require changes to the following Ontario statutes:

• Ontario Human Rights Code: The definition of "age" in subsection 10(1) of the code would be amended to remove the age 65 cap on discrimination in employment
• Employment Standards Act, 2000: Currently, the ESA provides that an individual whose employment is terminated at 65 as a result of a mandatory retirement policy or practice is not entitled to notice of termination or pay in lieu. With the elimination of mandatory retirement, all eligible employees, regardless of age, would be entitled to receive notice of termination or pay in lieu of notice when the employer ends their employment. However, employees who continue to be subject to a mandatory retirement policy or practice permitted under the Human Rights Code would not be entitled to notice of termination or pay in lieu
• Election Act: The provision that the Lieutenant Governor in Council can remove any returning officer who is 65 years of age would be repealed
• Health Protection and Promotion Act: The requirement that medical officers of health and associate medical officers of health retire at 65 would be repealed
• Ombudsman Act: The requirement that the Ombudsman retire at 65 would be repealed
• Coroner's Act: The requirement that coroners retire at 70 would be repealed
• Public Service Act: The requirement that Ontario government civil servants retire at 65 would be repealed
• Workplace Safety and Insurance Act, 1997: The Workplace Safety and Insurance Act, 1997 and its predecessor, the Workers Compensation Act, and all regulations, policies and decisions made under them, would be exempted to allow maintenance of the status quo

The Legislature is expected to rise for a summer break soon. It is not yet clear if Legislature will be prorogued, or will stand adjourned. If Legislature is prorogued, any unfinished business (including this Bill and any other that are not enacted) are dropped from the order paper, and must be re-introduced in the next session. In contrast, adjournment does not erase any unfinished business. When Legislature resumes, it picks up where it left off.

For more information on Bill 211, go to the Legislative Assembly of Ontario website.

By Yosie Saint-Cyr, Editor at HRinfodesk

Published on HRinfodesk---Canadian Payroll and Employment Law and Developments

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