# 2009-052 - Compulsory Retirement Age - A Discriminatory Practice?, Discrimination, Release date

Case Summary

F&R Date: 2010–04–30

The grievor requested an extension of service of approximately three months beyond his compulsory retirement age (CRA), however the request was denied as there was no military requirement to extend the grievor's service. The grievor submitted a grievance claiming that denying his request amounted to discrimination based on age, contrary to the Canadian Charter of Rights and Freedoms (the Charter).

The Board examined current relevant jurisprudence including cases from the Canadian Human Rights Tribunal and the Federal Court. Based on the jurisprudence, the Board found that discrimination based on age is no longer justified as a reasonable limit within a free and democratic society in virtue of section 1 of the Charter.

Despite the systemic recommendation that the Canadian Forces (CF) policy regarding CRA be reconsidered, the Board acknowledged that any resulting change in the policy would not affect the grievor in this case as it was unlikely that amendments, if any, would be retroactive. Notwithstanding, the Board recommended that the Chief of the Defence Staff (CDS) refer the grievance file to the Director Human Rights and Diversity for restitution through an informal resolution. Alternatively, the Board recommended that the CDS direct the grievor's re-enrolment for the period requested.

Systemic recommendation

In light of recent jurisprudence on the issue, the Board recommended to the CDS that the CF reconsider the imposition of a CRA for its members.

CDS Decision Summary

CDS Decision Date: 2011–01–12

The CDS disagreed with the Board's findings and its recommendation to grant the grievance. The CDS was of the opinion that the Supreme Court's decision in McKinney in 1990, in which it was held that the mandatory retirement age is not discriminatory, remains the applicable jurisprudence, while the opposite and the more recent trend on the same matter was rendered by inferior courts. In spite of the grievor's argument that the QR&O's disposition on compulsory retirement age (CRA) is discriminatory under the Charter, the CDS relied on paragraph 15(1)(b) of the Canadian Human Rights Act which states that where a regulation that provides for CRA age is enacted pursuant to said paragraph, the termination of employment upon reaching the maximum age will not constitute a discriminatory practice.

Finally, the CDS found that the decision not to support the grievor's request for an extension of service beyond CRA was reasonable, given that there was no short-term military imperative for his services, and there was no operational imperative need.