Mandatory retirement.

• Author: McKay-Panos, Linda
• Position: Human Rights Law

There are currently no laws in Canada that force a person to retire. The federal and most provincial governments prohibit age discrimination in their human rights legislation. Nevertheless, mandatory retirement does exist in Canada, and whether you are forced to retire and when, depends on where you live.

Civil servants who work for the federal government cannot be forced to retire. However, under current federal human rights legislation, mandatory retirement may be allowed for non-civil servants who work for an employer in a federally regulated industry. The CHRA, section 15(1)(c) provides that it is not a discriminatory practice if 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".

Recently, Air Canada pilots George Vilven and Neil Kelly, succeeded in challenging Air Canadas mandatory retirement policy. Mandatory retirement for Air Canada at age 60 has been a company policy and part of their pension plan since 1957. Since the early 1980s, provisions mandating retirement at age 60 have been part of the collective agreement between Air Canada and the Air Canada Pilots Association ("ACPA") (Vilven v Air Canada; Kelly v Air Canada, 2009 FC 367).

Vilven had been a pilot for Air Canada for a number of years. He turned 60 in 2003, and in accordance with the mandatory retirement provisions of the collective agreement, was required to retire on September 1 (Vilven v Air Canada; Kelly v Air Canada, 2009 FC 367). There was no suggestion of job performance-related issues or medical fitness issues. The sole reason for Vilven's employment termination was the mandatory retirement provision in the collective agreement.

In August 2004, Mr. Vilven filed a complaint against Air Canada with the Canadian Human Rights Commission, alleging discrimination on the basis of age, contrary to sections 7, 9 and 10 of the CHRA. Likewise, Mr. Kelly filed a complaint against both Air Canada and ACPA in March 2006. A group of current and former Air Canada pilots wanting to eliminate mandatory retirement ("Fly Past 60 Coalition") was granted interested party status in the case. This group filed a Notice of Constitutional Question, challenging the constitutionality of subparagraph 15(1) (c) of the CHRA on the basis that it violated the Canadian Charter of Rights and Freedoms ("Charter bisection 15(1).

The Canadian Human Rights Tribunal ("Tribunal") dismissed Vilven's and Kelly's complaints, and also found that CHRA section 15(l)(c) did not contravene Charter section 15(1) (Vilven and Kelly v Air Canada and Air Canada Pilots Association, 2007 CHRT 36 ("Vilven...