Mandatory retirement at age 65

Maximum age limits are used by employers to institute mandatory retirement policies at age 65 and these limits have been challenged under the Charter.  There are many cases considering the issue, including several decisions of the Supreme Court of Canada.  Although the cases differ in some respects (for example, some involve Charter challenges to legislation while others involve the application of mandatory retirement defences in human rights codes), mandatory retirement at age 65 has always been found justifiable by the Supreme Court^[75].

In McKinney v. University of Guelph,^[76] the Supreme Court of Canada considered the constitutionality of s. 10(1) of the Ontario Code, which limits protection from age discrimination in employment to persons between 18 and 65 and which therefore permits mandatory retirement policies for those aged 65 or over.  The Supreme Court found that the maximum age limit of 65 was prima facie discrimination on the basis of age contrary to s. 15(1) of the Charter.  However, it was found to be a reasonable limit on the right and hence saved by s. 1 of the Charter^[77].

In the s. 1 analysis, the court traced the background of mandatory retirement policies and their impact on the workplace.  Mandatory retirement was developed with the introduction of private and public pension plans and had a profound impact on the organization of the workplace and the structure of pension plans, on fairness and security of tenure in the workplace and on opportunities for others.  The Supreme Court found that one of the objectives of the impugned section of the Code was to arrive at a legislative compromise between protecting individuals from discrimination and giving employers and employees the freedom to agree on a date of termination considered beneficial to both.  The objectives of the section, namely to preserve the integrity of pension plans and to foster the prospects of younger workers by establishing an age maximum, were found to be pressing and substantial, to be rationally connected to the restriction on the right and to minimally impair the equality rights of older persons.

The issue of mandatory retirement at age 65 was considered by the Supreme Court on several subsequent occasions.  In Stoffman v. Vancouver General Hospital^[78], the Court applied McKinney and found that a regulation which took away doctors’ hospital privileges at age 65, in effect forcing them to retire, was justifiable under s. 1 of the Charter^[79]. Of interest in this case was the Court’s implicit acceptance of the notion that older persons are not “on the cutting edge of new discoveries and ideas” and that at age 65, doctors are “less able to contribute to the hospital’s sophisticated practice”.  Despite recognizing that there will be considerable variety between individuals as to the rate at which the skills and aptitudes essential to the practice of medicine deteriorate, the Court rejected skills testing or performance evaluations as an option.

This should be contrasted with the two dissenting opinions in Stoffman.  Madame Justices Wilson and L’Heureux-Dubé both rejected the stereotype, which forms the unarticulated premise of mandatory retirement, that with age comes increasing incompetence and decreasing ability.   L’Heureux-Dubé J.’s dissent rejects the notion that a person somehow becomes less fit the day after her 65^th birthday:

In McKinney, I expressed the view that forcing the end of a career based on age alone does not pass muster under the Charter, as age is surely not determinative of capacity or competence. One is no less competent the day after one's 65th birthday, than the day before. Fundamentally it is a question of personal dignity and fairness….The same concerns can be raised in this case. Medical practitioners do not become incompetent at a given age. One falls below acceptable levels of proficiency through inattention to medical advances and, inter alia, inadequate physical stamina and health. But a forced retirement policy is arbitrary and simply sets a date for all this to occur. It confounds logic to suggest that these concerns simply occur on the passing of a given day in all cases.^[80]

The issue of mandatory retirement at age 65 for university professors was once again raised in Dickason v. University of Alberta^[81]. Unlike the situation in McKinney, the Alberta Individual Rights Protection Act did not have a maximum age.  Therefore, the issue was whether the defence within the Act, which permitted employers to discriminate where it was “reasonable and justifiable in the circumstances”, applied to the scheme.  Despite a holding that the university was not to be accorded deference, and although a legislative defence to discrimination should be construed narrowly, the court nevertheless found the scheme reasonable and justifiable in the circumstances. 

In Cooper v. Canada (Human Rights Commission)^[82], an express mandatory retirement defence contained in the Canadian Human Rights Act was unsuccessfully challenged.  While that Act did not limit its application to a maximum age, it contained a provision (s. 15(c)) which stated that it is not discriminatory to retire a person at the normal retirement age for their occupation.  Mr. Cooper, an airline pilot, was forced to retire at age 60, the normal age of retirement for airline pilots.  The Federal Court Trial Division, upheld by the Federal Court of Appeal, found that because of the McKinney decision, the Supreme Court had effectively endorsed the legality of s. 15(c) of the Canadian Human Rights Act.

Despite the decision in McKinney and the restricted definition of ‘age’ in the Ontario Code, it appears that in the labour relations context it may be possible to have an age-based mandatory retirement policy at age 65 ruled invalid.  This was the result in Ottawa Hunt and Golf Club v. Hospitality and Service Trades Union, Local 261^[83]. In that case, the collective agreement had a provision prohibiting discrimination because of age with no qualification, i.e. for mandatory retirement.  What is interesting about the decision is the fact that the arbitrator noted that the Ontario Code can be used to interpret a collective agreement provision where conflict with the legislation would otherwise render the provision invalid (e.g. if the agreement attempted to contract out of the Code).  However, where, as in this case, the union’s interpretation would not result in any illegality, there was no reason to import the Code’s restrictions on the term ‘age’.