Mandatory retirement in Canada has 'gone the way of the kiki bird' --it's very rare!(Human Rights Law)

• Author: McKay-Panos, Linda

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 (online: www.bpmmagazine.com/Benefits_Pensions_Online_ Exclusives.html), 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 (online: http://news.nationalpost.com/2011/12/18/tories-endforced- retirement-decades-of-age-discrimination/).

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 Charters. 1, and thus is unconstitutional. In Vilven and Kelly v Air Canada...