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Two recent decisions dealing with mandatory retirement policies reveal that the issue is still relevant despite amendments to human rights legislation in most (if not all) provinces to remove the "cap" of 65 years from the definition of "age".

The first case is Esprey v. Ontario Human Rights Commission et al. (link will follow) was decided on December 18, 2008 by the Ontario Human Rights Tribunal.  This case dealt, in part, with whether the mandatory retirement provision in a collective agreement requiring "suppression" firefighters to retire at age 60 was discriminatory under the Ontario Human Rights Code. 

The Tribunal, after considering considerable evidence, determined that the policy was prima facie discriminatory (this was conceded) but that, in the circumstances, the policy was justified under section 24(2) of the Code as a bona fide occupational qualification ("bfoq").  That section provides that:

The Tribunal considered the Meiorin test (another firefighter case, but in a different context) and concluded that a bfoq was present in the narrow circumstances of this case.  In reaching this conclusion, the Tribunal, as would be expected, relied upon expert evidence and evidence regarding the job requirements of "suppression" firefighters. 

The second case involved the mandatory retirement of a number of employees  between 2001 and 2003.  In doing so, the employer was simply enforcing its long-standing mandatory retirement policy. Furthermore, at the time that these retirements took place the Code provided for an age "cap" of 65 years such that the Union had to seek other means to get around the policy. They looked to the Canadian Charter of Rights and Freedoms.

The Arbitrator allowed the grievance and made a number of comments about these types of policies, generally, and the collective agreements before him specifically and I will set out a number of these:

• "The conclusion is actually inescapable that the policy was an artifact from an earlier age, unthinkingly carried forward from the legacy boards to the amalgamated Board."
• "Of special interest in this case is the fact that the policy while perhaps never directly bargained in a formal sense, made its way into the collective agreement where it is reflected in a number of different provisions as set out above."
• "...what evidence there is convincingly establishes that on this self-evidently important matter, the union turned down two opportunities to make its views known and, putting the union?s evidence at its absolute best, acquiesced in the continuation of the prevailing pre-amalgamation policy of requiring mandatory retirement."
• "There was a longstanding policy of mandatory retirement at age 65. The union was aware of that policy as thousands of employees were retired under it, and it was effectively incorporated by reference into the various collective agreements. Other evidence introduced into the hearing confirm that the union knew all about the policy. Making that factual finding even stronger is the further evidence that the union, in collective bargaining, sought to make changes to the policy."
• "At the time the grievances in this case were filed, mandatory retirement was still permitted under the Ontario Human Rights Code."

At this point, if you're the employer, you're feeling pretty good about the case, however, things took a turn and the grievance was allowed. 

The Arbitrator commented:

After considering the McKinney approach to the section 15 analysis, the Arbitrator observed that:

The Arbitrator turned to whether the mandatory retirement policy was reasonably justified under section 1 of the Charter and noted that "it should be noted that the Supreme Court of Canada has repeatedly and conclusively determined that mandatory retirement policies are justified under section 1 of the Charter."  In the circumstances of this case, it was held that there was a "complete absence of a credible and persuasive section 1 justification" and the grievance was allowed.

The discussion in the latter case may well be "historical" and, in any event, restricted to those workplaces where the Charter applies.  That said, it provides a clear indication that there has been a change in thinking on this issue, supported by legislative amendments to human rights legislation (which were not in effect at the time that the grievances arose).

The former case, while also quite narrow in focus, remains relevant in certain workplaces and is a very important case. 

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