Canada’s rules on mandatory retirement

In Canada, labour laws do not specify a retirement age for employees. However, some laws or government policies governing specific occupations (commercial airline pilots, for example) set an age limit for persons employed in those occupations.

Forcing an employee to retire by reason of age is considered to be a human rights issue and is regulated by human rights legislation. However, in Quebec, in addition to this type of legislation, provisions contained in labour standards legislation specifically prohibit mandatory retirement.

In Quebec, forcing an employee to retire because of age is considered to be discriminatory under the Charter of Human Rights and Freedoms and the employee concerned may file a complaint with the Human and Youth Rights Commission (Commission des droits de la personne et des droits de la jeunesse).

In addition, since the enactment of An Act Respecting the Abolition of Compulsory Retirement, which took effect April 1, 1982, it is a prohibited practice under the Act Respecting Labour Standards for an employer to dismiss, suspend or retire an employee because the employee has reached or passed retirement age. However, an exception to this prohibition against compulsory retirement is provided so as not to preclude an employer from dismissing, suspending or transferring an employee for good and sufficient reason.

Manitoba’s Human Rights Code also prohibits mandatory retirement, although it allows employers to terminate the employment of an employee on the basis of “bona fide and reasonable requirements or qualifications for the employment or occupation.”

In Alberta, New Brunswick, Prince Edward Island and the three territories, the practice of mandatory retirement in enterprises under provincial or territorial jurisdiction is discriminatory under the human rights legislation.

However, it is considered that there is no discrimination where employment is terminated because of the terms or conditions of a bona fide retirement or pension plan.

At the federal level, it is not a discriminatory practice under the Canadian Human Rights Act to terminate an individual’s employment because that individual has reached the normal age of retirement for employees working in similar positions. Therefore, in those circumstances, as stated in the Act, mandatory retirement is permitted.

Under the British Columbia, Newfoundland and Labrador, Ontario and Saskatchewan human rights legislation, older employees are protected against discrimination based on age until they reach 65. This means that employees who are 65 or over cannot file a complaint for age discrimination if they are forced to retire. Similarly, in Nova Scotia, mandatory retirement at 65 is not considered to be discriminatory under the human rights legislation if this is a standard practice in the workplace.

However, the Nova Scotia Human Rights Commission will investigate if employees who are 65 or over are not treated in the same way as others in the same age category with respect to retirement.

Case law indicates that, in some circumstances, laws or government policies permitting mandatory retirement are justified under section 1 of the Canadian Charter of Rights and Freedoms (reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society).

The cases to date focus on mandatory retirement in certain portions of the public sector. The case law is continuing to evolve.

From Labour Law Analysis, Intergovernmental and International Labour Affairs, the Labour Program, Human Resources and Skills Development Canada. (August 18, 2004.)

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