On June 26, 2015, the British Columbia Human Rights Tribunal
dismissed a complaint regarding mandatory retirement
in Yaremy v. City of Vancouver and another, 2015
BCHRT 98. The decision allows an employer to enforce
mandatory retirement of employees when it is tied to
a bona fide retirement, pension, or
superannuation plan. This decision also signifies that benefits can
be denied based on age.
John Yaremy was a firefighter employed by the City of Vancouver
(City) and a member of the Vancouver Fire Fighters' Union,
Local 18 (Union). When he was hired, Mr. Yaremy was mandatorily
enrolled in a pension plan. The rules in the pension plan listed
age 60 as the "normal retirement age" for firefighters.
The collective agreement between the City and the Union referenced
the pension plan and required all firefighters to retire at age 60.
Mr. Yaremy's employment was terminated by the City when he
turned 60 as retirement was mandatory. At the time, Mr. Yaremy was
physically disabled, on medical leave, and unable to
Mr. Yaremy argued that the City was discriminating against him
on the basis of age and physical disability, discrimination that is
prohibited under the BC Human Rights Code.
The City and the Union argued that the requirement for mandatory
retirement was inextricably linked to the operation of a bona
fide retirement, pension, or superannuation plan. In the Code,
discrimination based on age is allowed when it relates to a
bona fide retirement, pension, or superannuation plan.
The Tribunal agreed with the City and the Union. It held that
the collective agreement worked in conjunction with the pension
plan and that mandatory retirement was a closely intertwined
component of the pension and retirement package for firefighters.
Due to this finding and a separate finding that Mr. Yaremy was
terminated solely for his age (and not his disability), Mr.
Yaremy's complaint was dismissed for having no reasonable
likelihood of success.
Implications for Employers
Mandatory retirement in British Columbia is now lawful for many
employers, as there are now exceptions for bona fide
retirement, pension, or superannuation plans.
An employer's plan may be a bona fide retirement,
pension, or superannuation plan if the following apply:
The overall plan is legitimate,
adopted in good faith, and not created for the purpose of defeating
The plan itself stipulates a
retirement age and is funded or otherwise structured based on that
age. The retirement age can differ depending on the occupational
requirements (e.g., setting a lower retirement age for a job that
is highly physical in nature). However, the actuarial basis for the
plan must have been developed based on a specific age and that age
must have been set in good faith (i.e. not to defeat the human
rights prohibition on age discrimination).
The express terms and conditions of
employment (i.e., as set out in a collective agreement or
employment contract) make reference to the plan.
In the case of a pension plan, that
plan is registered under applicable provincial and federal
legislation, and the requirements to maintain the plan (e.g.,
documents and registration information) are up to date.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).