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The answer to this question is, surprisingly, not clear. For
Ontario, Quebec, Manitoba and the Yukon, the provincial human
rights legislation treats mandatory retirement as age
discrimination regardless of what age it is imposed at. Federally,
an amendment to the Canadian Human Rights Act will abolish
mandatory retirement as of December 15, 2012 by way of Bill
C-13.
It is in the other provinces and territories where the answer is
more complicated. Although all of these other jurisdictions
prohibit discrimination on the basis of age and, therefore, make
mandatory retirement illegal by defining it as age discrimination,
all have some stated exceptions. New Brunswick human rights
legislation allows mandatory retirement where the terms or
conditions of any bona fide retirement or pension plan
provide for it. Saskatchewan, British Columbia, Alberta, Prince
Edward Island, Nunavut and the Northwest Territories legislation
provide an exception for the operation of a bona
fide/genuine/good faith retirement or pension plan. Nova
Scotia legislation provides an exception for the operation of a
bona fide pension plan.
Newfoundland and Labrador's Human Rights Act
provides that age discrimination does not apply to a good faith
retirement or pension plan, but this exception does not apply to a
good faith retirement or pension plan that requires a person to
retire at an age set out in the plan. Generally, this would mean
that mandatory retirement at a certain age is not allowed, even
pursuant to a good faith retirement or pension plan. However, the
legislation has yet to be interpreted by a court or tribunal.
What does the operation of a bona fide pension plan
mean? The Human Rights Board of Inquiry dealt with that question in
regards to the Nova Scotia legislation in Theriault v.
Conseil Scolaire Acadien Provincial (CSPA), [2008] NSHRBID
No 2. In Theriault, the Board of Inquiry held that
employers seeking to rely on this exception must prove that the
bona fide pension plan must be prevented from operating if
participants continue working past a defined retirement age. The
Human Rights Panel addressing this issue with respect to the PEI
legislation found much the same in Nilsson v.
University of Prince Edward Island, [2010] PEIHRBID. In
Nilsson, the Panel differentiated the language of
affecting the "operation" of a bona fide pension
or retirement plan versus the New Brunswick language which uses the
broader language of affecting the "terms or conditions"
of any bona fide retirement or pension plan.
What does a bona fide/genuine/good faith retirement
plan look like? The Supreme Court of Canada dealt with that issue
in regards to the New Brunswick legislation in New Brunswick
(Human Rights Commission) v. Potash Corporation of
Saskatchewan Inc., [2008] 2 S.C.R. 604. In that case, the
Supreme Court of Canada held that a retirement or pension plan must
be subjectively and objectively bona fide. Specifically,
it must be a legitimate plan that was adopted in good faith and was
not for the purpose of defeating protected rights.
For companies that are operating in different jurisdictions
across Canada, special attention must be paid to the differing
rules. However, the trend is moving towards banning mandatory
retirement across Canada, as can be seen in the legislative changes
removing the upper age limit to age discrimination in human rights
legislation over the last number of years making any efforts to
continue to impose mandatory retirement by a company fraught with
difficulty.
The Federal Court of Appeal recently weighed in to reconcile competing tests on the proper way to determine whether an individual is a contractor or truly an employee.
A discussion on a recent decision of the Federal Court of Appeal, which confirms that the central question is, whether the person is performing the services as his own business, on his own account.
Back in July 2012, we covered "PVYW v Comcare" (No 2), [2012] FCA 395, which concerned an employee in the HR department of an Australian government agency who was injured on a work-related trip to a country town in New South Wales.
The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face.
Some organizations subscribe to the close your eyes and think good thoughts school of drafting, when it comes to non-competition agreements in employment contracts.
A discussion on the judicial decision in a recent case, where a BC employer has successfully defended a claim for constructive dismissal despite taking away supervisory duties and moving the employee from an office to a cubicle.
Employment, Labour and Immigration Law in Canada Preview 
