Compulsory Retirement Age - A Discriminatory Practice?

Topic

Compulsory Retirement Age - A Discriminatory Practice?

Case number

Description

The grievor requested an extension of service beyond his compulsory retirement age (CRA) which was denied. 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).

In 1990, in the McKinney case, the Supreme Court of Canada held that mandatory retirement policies were fundamental, and they were not based on stereotypes, but they were the result of administrative, institutional, and socio-economic considerations.

In a recent case, the Federal Court of Canada (FCC) overturned a Canadian Human Rights Tribunal (CHRT) decision and found that section 15(1)(c) of the Canadian Human Rights Act (CHRA), with regard to mandatory age of retirement, constitutes discrimination as per section 15 of the Charter. Most importantly, the FCC sent the matter back to the CHRT to determine whether mandatory retirement age can be demonstrably justified as a reasonable limit in a free and democratic society by virtue of section 1 of the Charter. The CHRT released its decision on the matter in August 2009 and concluded that this was indeed the case.

There are significant differences between the factual context in which the Supreme Court rendered its decision in 1990 and the context that prevails today. For example, people start careers at a later age and the Canadian Forces (CF) is no exception. While the recruiting base of young Canadians is shrinking, there is a need to keep skilled and experienced members who are difficult to replace. People are capable of working longer, since the health care status of older people is improving. Furthermore, a system is already in place to monitor the performance and the medical status of CF members and to require release when members do not meet the universality of service principle.

Although a judical review has been filed in the Vilven case, and despite the fact that the Supreme Court has not decided on this issue in light of the actual context, a series of lower court decisions and governmental positions reveal a trend that will surely affect provisions on CRA in all spheres of endeavour, including the CF.

Recommendation

The Board recommended to the Chief of the Defence Staff that the CF reconsider the imposition of a CRA for its members in light of the recent jurisprudence.

Final Authority Decision

The CDS was of the opinion that the Supreme Court's decision 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.

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