Ontario mandatory retirement to be eliminated

Workers can stay on the job past 65 but no protections for benefits and insurance

Effective December 12, 2006, amendments to the province’s Human Rights Code will come into force, generally ending mandatory retirement in Ontario.

The province passed Bill 211, the Ending Mandatory Retirement Statute Law Amendments Act, 2005, on December 12, 2005; however, it has provided a one-year transition period for businesses, unions, and individuals to adjust to the changes.

The bill amended the definition of “age” in the Human Rights Code to remove the ceiling on protection from age discrimination. Currently, the Code only protects employees’ age 18 to 64 years old from age discrimination. As a result, employers can force employees to retire beginning at age 65. By removing the ceiling, the government is effectively ending mandatory retirement.

Exceptions would apply where mandatory retirement is justified because of a “bona fide” occupational requirement. The province defines this as a job qualification or requirement needed to carry out the employees “essential job duties”.

Older workers could still be terminated for just cause or due to business reorganization, or for other such reasons, as long as it had nothing to do with their age.

The Labour Ministry has announced that it will also amend regulations under the Employment Standards Act, 2000 so that entitlement to notice of termination/pay in lieu of notice would apply to all employees regardless of their age (although exceptions would apply for a bona fide occupational requirement). Currently, the regulations allow employers to terminate without notice/pay in lieu of notice the employment of employees who have reached the company-required retirement age.

The Labour Ministry notes that it will not change the Employment Standards Act to require employers to include employees age 65 and over in company benefit and insurance plans. It also says eliminating mandatory retirement will not affect pension benefits already earned. In addition, it says employers will still be allowed to offer voluntary early retirement packages to employees.

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