Age

In 20 years, it is expected that nearly 20% of Canadians will be age 65 or older and there will be as many seniors as children in Canada. While increased longevity is certainly a good thing, it also presents new challenges.

Some of these challenges, which are shared by other industrialized nations, will be the focus of a major UN conference to be convened in April 2002 in Spain. The second World Assembly on Ageing will consider a draft International Strategy for Action on Ageing. The draft strategy states that older persons should be enabled to continue income-generating work for as long as they want and are able to do so productively. It calls for action to translate this goal into reality for older workers who wish or need to continue paid employment.

The preparations for the World Assembly provide an opportunity for debate in Canada on current policies and practices affecting seniors. One area that deserves attention is the provision in the Canadian Human Rights Act that permits employers under federal jurisdiction to force employees to leave the workforce at a set age. Although the federal Government abolished mandatory retirement for its employees in 1986, the Act still permits it for federally regulated private employers.

In 1990, the Supreme Court of Canada affirmed that mandatory retirement was not contrary to the Charter of Rights and Freedoms. Consequently, although it has been abolished in some sectors, this type of age discrimination remains quite permissible in Canada. The Commission must frequently advise Canadians who have been forced from their jobs simply because they have reached a fixed retirement age that it cannot move forward with their discrimination complaint.

The Commission has repeatedly stated its view: in most circumstances the only criterion for refusing to employ someone should be their inability to do the job. Their age is irrelevant. Yes, it is true that as people age their capacity to do certain types of work, or specific parts of a job, may decline. But certainly there is nothing magic about turning 65 that makes employees become incompetent.

Arguments that abolishing mandatory retirement will deprive young people of much-needed jobs are also, in the Commission’s view, lacking in substance. Most Canadians work hard all their lives and in the vast majority of cases will be only too pleased to retire as soon as they are able to do so. The point is not that thousands of people want to work into their 70s or 80s, but that those few who are able and wish to continue to work, for whatever reason, should be allowed to do so.

It is hoped that an October 2001 British Columbia court case will open the mandatory retirement issue for a much-needed re-examination. In the case of Greater Vancouver Regional District Employees’ Union v. Greater Vancouver Regional District, the B.C. Court of Appeal emphasized the important changes that have happened in the 11 years since the Supreme Court of Canada decision affirming mandatory retirement: “The extent to which mandatory retirement policies impact on other equality rights, and on the mobility of the workforce, have become prominent social issues,” the Court noted. “The social and legislative facts now available may well cast doubt on the extent to which our courts should defer to legislative decisions made over a decade ago. The issue is certainly one of national importance.” The Court noted that in two other industrialized countries, Australia and New Zealand, mandatory retirement has been abolished by legislation.

The relationship between age and the ability to be promoted through the ranks in the Canadian Forces was the subject of an important Tribunal decision in December 2001. George Morris was a veteran member of the Forces with a proven record of exemplary performance. In 1990, at age 46, he qualified for promotion to the rank of Master Warrant Officer. However, the expected promotion never came because, as the Tribunal determined, the Forces felt he was too old for promotion. In finding that the Forces had unjustly discriminated against him based on age, the Tribunal ordered them to promote Mr. Morris to the rank of Master Warrant Officer effective September 1, 1993. The Forces were further ordered to pay him the difference between the salary he received and the one he would have received as a Master Warrant Officer. Finally, the Forces were to compensate him for his lack of promotion and to pay him $3,000 for hurt feelings and loss of dignity. In rendering its decision, the Tribunal found that there was a mind set in the military that older members should not be promoted. This decision reinforces the principle that in most cases the only determinant for promotion in the Canadian Forces, or elsewhere, should be the person’s ability to do the job.

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