On December 15 , 2011 the federal government gave Royal Assent
to the omnibus Bill C-13. Included in that Bill was Part 12 which
amended the Canadian Human Rights Act to repeal certain provisions
that allowed for mandatory retirement. It also amended the Canada
Labour Code to repeal a provision that denied employees the right
to severance pay for involuntary termination if they are entitled
to a pension.
BC eliminated mandatory retirement in 2008 following other
jurisdictions such as Ontario. This recent amendment to the
Canadian Human Rights Act brings the federal legislation in line
with British Columbia human rights. The abolishment of mandatory
retirement in the federal legislation will not take effect until
December 2012 and will allow federal employers some lead time to
transition. An employer may still implement mandatory retirement
but must rely upon proving a bona fide occupational retirement. It
is highly unlikely that most employers will be successful, in my
view, in implementing such restrictions. The case of the retirement
of airline pilots will have to be re-examined in light of this
decision and it will be interesting to see if safety concerns trump
Without a cap on retirement, employers will be faced with
a myriad of problems in dealing with older employees. While it was
anticipated that many older employees would retire, the fallout
from of the economic downturn beginning in 2008 will require many
employees to work well beyond what they anticipated would be their
retirement age. The inability to mandatorily retire employees makes
employers vulnerable to human rights complaints such as
discrimination on the basis of physical or mental disabilities. It
will mean employers will have to manage all employees the same way
and employers will not want to just let performance issues slide as
an employee reaches what would otherwise have been the mandatory
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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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