One of the first human rights cases I worked on while articling at the Alberta courts involved mandatory retirement. In 1992, Dr. Olive Dickason unsuccessfully challenged the University of Alberta’s mandatory retirement policy (see: Dickason v University of Alberta, [1992] 2 SCR 1103). While Dr. Dickason was successful in arguing before the Alberta Human Rights Commission Board of Inquiry that the mandatory retirement clause in the collective agreement contravened Alberta’s (then) Individual’s Rights Protection Act (for age discrimination), the Alberta Court of Appeal overturned the decision. A majority of the Supreme Court of Canada agreed with the Court of Appeal, holding that the University had shown that the discrimination was reasonable and justifiable in the circumstances. The courts were impressed with the stated objectives of the University’s mandatory retirement policy: preservation of the tenure system; promotion of academic renewal; facilitation of planning; and the protection of “retirement with dignity” for faculty members.
That was the law in 1992, but today there has been a shift. Perhaps because the large baby boomer generation is currently reaching the age of retirement, it seems that the courts and lawmakers have changed their attitudes towards mandatory retirement.
While in 1990, about two-thirds of collective agreements provided for mandatory retirement at age 65 (Derek Knoechel, “Mandatory Retirement Being Retired Across Canada” Benefits and Pension Monitor), times have changed. In most Canadian provinces, mandatory retirement is either prohibited entirely or permitted only if it is based on a bona fide retirement or pension plan, or as a bona fide occupational requirement. The Canadian Human Rights Commission has been unsuccessfully calling for the repeal of the mandatory retirement provisions in its legislation since 1979 (Kathryn Blaze Carlson “Tories end forced retirement, decades of ‘age discrimination’” 19 December 2011 National Post.)
Finally, a recent decision of the Federal Human Rights Tribunal held that Canadian Human Rights Act, RSC 1985 c H-6 (CHRA), s. 15(1)(c) violated the Canadian Charter of Rights and Freedoms, s. 15(1), and could not be saved by Charter s. 1, and thus is unconstitutional. In Vilven and Kelly v Air Canada (Vilven and Kelly), 2009 CHRT 24, two airline pilots challenged their mandatory retirement at age 60. The mandatory retirement provisions of the collective agreement were ruled to constitute age discrimination. The company argued that standards in the airline industry prohibited a person over the age of 60 from certain positions in the air crew of a plane involved in international flights, and that this would cause schedule planning difficulties for the airline. Neither of these arguments was sufficient to save the finding that the mandatory retirement policy was unconstitutional.
CHRA, subsections 15(1) (a) to (c) provide:
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
(b) employment of an individual is refused or terminated because that individual has not reached the minimum age, or has reached the maximum age, that applies to that employment by law or under regulations, which may be made by the Governor in Council for the purposes of this paragraph;
(c) an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;
This finding of unconstitutionality seemed to add fuel to the fire for those who were arguing that mandatory retirement should be scrapped from the CHRA. In late 2011, Parliament passed legislation that repeals s. 15(1)(c) effective December 2012.
While this will mean mandatory retirement policies are not allowed in some circumstances, there will be some cases where mandatory retirement based on age will be determined to be a bona fide occupational requirement (BFOR).
The BFOR defence (or exception) exists in most human rights legislation across Canada. The Supreme Court of Canada has developed legal factors to be considered when determining whether an occupational requirement is indeed bona fide. See: British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.), [1999] 3 SCR 3 (Meiorin Grievance). These include:
- that the employer adopted the standard for a purpose rationally connected to the performance of the job;
- that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
- that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
With respect to considering whether it is impossible to accommodate an employee without imposing undue hardship on an employer, factors considered by the Court include cost, safety, employee morale, interference with other employees’ rights, and disruption of the collective agreement.
In the Vilven and Kelly case, the matter was appealed to the Federal Court for a second time (see Air Canada Pilots Association v Kelly and Vilven; 2011 FC 120, (“Vilven and Kelly #2”)). Justice Anne Mactavish ruled that the Tribunal had acted unreasonably when it failed to acknowledge and analyze the evidence Air Canada had submitted to support its claim that an age limit of 60 for airline pilots is a BFOR. In particular, she was concerned about the Tribunal’s treatment of the evidence of flight operations expert Captain Steven Duke about the unworkability of scheduling pilots who are over 60 and under 65, and first officers who are over 60. Captain Duke had opined that additional pilots would have to be hired by Air Canada to ensure that all flights are properly staffed and would also have to continue paying over-60 pilots whose services could not be used.
In July 2011, the Federal Human Rights Tribunal heard the matter for the third time (see: Vilven and Kelly v Air Canada, 2011 CHRT 10). The Tribunal was to re-determine whether age was a bona fide occupational requirement for Air Canada after November 2006 (which was the date that the International Civil Aviation Organization’s rules were amended to permit pilots under age 65 to fly internationally as long as one of the pilots in a multi-pilot crew was under 60). Tribunal member Wallace G. Craig held that Air Canada had passed the Meiorin BFOR test by (among other things) establishing that the mandatory retirement standard melded the company’s needs with the collective rights and needs of its pilots. Further, abolishing mandatory retirement would result in increased operational costs, inefficiency in the scheduling of pilots and negative ramifications for both the pilots’ pension plan and the collective bargaining agreement. The Tribunal found that Air Canada would suffer undue hardship in accommodating the complainants’ needs. Pilots Vilven and Kelly have applied for judicial review of this decision.
Thus, the defence of bona fide occupational requirement can still apply to age discrimination in employment, even though provisions permitting mandatory retirement in human rights legislation will soon be extinct.
About Linda McKay-Panos
