Bill 211 (Ending Mandatory Retirement Statute Law Amendment Act, 2005) was finally passed by the Ontario legislature on December 8, 2005 and is expected to receive Royal Assent shortly. This much anticipated legislative initiative first gained attention in June 2001 when the Ontario Human Rights Commission published a paper calling for the elimination of mandatory retirement in Ontario.
Three premiers and four labour ministers later, the elimination of lawful mandatory retirement will soon become reality. We first alerted readers to the proposed changes to mandatory retirement back in June, 2005 when the legislation received first reading.
To recap, Bill 211 will amend the definition of "age" in subsection 10(1) of the Ontario Human Rights Code in order to protect persons aged 65 and older against age discrimination in employment. Mandatory retirement will only be permitted if there is a "bona fide occupational requirement" as determined under the Human Rights Code.
In order to allow workplaces time to adjust to the elimination of mandatory retirement, the legislation will take effect one year after the legislation receives Royal Assent, which is expected to be later this month.
Other key elements of Bill 211:
Mandatory retirement will only be permitted under the Human Rights Code as a "bona fide occupational requirement".
Existing mandatory retirement provisions in current collective agreements will no longer be enforceable once the proposed legislation comes into effect, one year after Royal Assent.
Nothing in this Bill prevents unions and employers from negotiating early retirement packages for workers.
Ending mandatory retirement will not have an impact on pension benefits already earned.
Employees could continue membership in pension plans and accrue benefits past age 65 subject to service or contribution caps of the pension plan.
Ending mandatory retirement will not affect the entitlement of individuals in Ontario to access CPP at age 65.
The provision under the Employment Standards Act, 2000 prohibiting employers from discriminating on the basis of age in providing benefits to employees aged 18 to 64 will remain in place following the coming into force of this legislation. In other words it will be permissible to exclude employees aged 65 and older from benefit plan coverages.
Government benefits such as the Ontario Drug Benefit Plan will continue to be available for those aged 65 and over.
Notice of Termination After Age 65:
Neither notice of termination nor termination pay is currently available for individuals whose employment is terminated at age 65 as a result of a mandatory retirement policy. The proposed legislation will entitle all eligible employees, regardless of age, to receive notice of termination or pay in lieu of notice when their employer terminates their employment without cause. However, notice of termination or pay in lieu will not be required for employees who continue to be subject to a mandatory retirement policy or practice that is permitted as a bona fide occupational requirement under the Human Rights Code.
Workplace Safety and Insurance:
Bill 211 will not alter any entitlements under the Workplace Safety and Insurance Act, 1997.
Workers who are aged 63 or more at the time of an injury will continue to be able to receive loss of earning benefits for up to two years.
Workers who are injured before age 63 will cease to receive loss of earning benefits at age 65.
Specific provisions in other legislation which currently allow mandatory retirement will be eliminated.
With mandatory retirement no longer an option in provincially regulated workplaces in Ontario (except as a "bona fide occupational requirement"), employers will have to carefully examine a number of issues prior to the coming into force of this legislation. At a minimum, employers will have to revise employment policies which call for mandatory retirement. More importantly, they will have to consider the impact of accommodating aging employees who continue to work.
Any member of our Employment and Labour Relations Group will be pleased to advise you of your obligations in a post mandatory retirement era.
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.
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