The Government of Canada has recently confirmed repeal of the
legislative provisions which have allowed for mandatory retirement
of employees governed by federal employment and human rights
legislation. As a result of the Royal Assent of Bill C-13, the law
governing federally regulated private sector employers now matches
the provisions in other Canadian provinces, including B.C., Alberta
and Ontario, which have already outlawed mandatory retirement.
The provisions of Bill C-13 which amend the relevant provisions
of the Canadian Human Rights Act, will not take effect
until December 2012, which allows employers a period of transition.
The elimination of mandatory retirement will mean that federally
regulated employers will not be able to terminate employment
because of age unless the employer is able to establish a bona
fide occupational requirement. It is anticipated that it will
be difficult, from a practical perspective, for employers to meet
this legal test.
In those jurisdictions where mandatory retirement has already
been abolished, there has not yet been the predicted raft of
complaints from employees claiming they have been forced to retire
contrary to the abolishment of mandatory retirement. However the
extent to which this may change as the requirement for employers to
"manage out" older workers who are not performing becomes
more pronounced as the work force ages, remains to be seen.
The end of mandatory retirement has clearly led to employers
taking a more proactive and aggressive approach to employee
performance management since they will in many cases no longer be
able to rely on a retirement rule or policy. This reality, which
already affects most other employers in Canada, now also faces
federally regulated employers as a result of the Royal Assent of
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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