An arbitrator recently upheld the validity of a collective agreement clause imposing mandatory retirement at age 65.
The union challenged the clause on the grounds that the collective agreement prohibited age discrimination. The parties had not defined “age” in their collective agreement, however, and the Human Rights Code permits age discrimination with respect to individuals 65 years of age and over.
Anticipating that the arbitrator might find that the collective agreement clause prohibiting age discrimination applied only to those under 65, the union argued alternatively that the Human Rights Code itself contravened the equality provisions in section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”). The Code, the union agued, should provide equal protection against age discrimination regardless of whether an individual is over the age of 65.
In considering the union’s argument, the arbitrator was obliged to revisit a 1990 ruling of the Supreme Court of Canada in McKinney v. University of Guelph (“McKinney”), in which the Court held that mandatory retirement was permissible under the Charter.
The McKinney decision was not intended to be a permanent stamp of approval of mandatory retirement policies. Rather, the Court’s decision was to be revisited when a full analysis of the socio-economic impact of abolishing mandatory retirement could be made. The Supreme Court of Canada estimated this would take approximately 15-20 years.
While it has now been 16 years since the McKinney decision, the arbitrator found himself bound to follow it. The union put no evidence before him upon which he could undertake the “reliable analysis” of the actual impact of abolishing mandatory retirement that was urged by the Supreme Court of Canada in McKinney.
He noted that individuals contesting mandatory retirement ought to have the benefit of such an analysis as soon as possible to determine whether excluding individuals aged 65 and over from protection from age discrimination continues to be justifiable under the Charter. He admitted, however, that such an analysis would be an enormous undertaking given the complexity of the issue.
In the result, the arbitrator upheld the mandatory retirement provision on the basis of the particular bargaining history of the parties.
It is important to note that the issue of mandatory retirement is currently in flux. Alberta, Manitoba, Prince Edward Island, Quebec, the Northwest Territories, Nunavut and the Yukon have banned mandatory retirement. Ontario will soon join this growing list.
Five provinces, including British Columbia, continue to have human rights legislation that permits mandatory retirement at or after age 65. Such legislation may be subject to further challenges which, if successful, would have the effect of prohibiting both private and public sector employers from imposing mandatory retirement.
Re Lehigh Northwest Cement Ltd.(2005), 142 L.A.C. (4th) (Taylor)