Mandatory Retirement
   
A mandatory retirement case heard by the British Columbia Court of Appeal has placed in question the meaning and scope of previous decisions of the Supreme Court of Canada, in particular the latter's judgment in Mckinney v. University of Guelph.³¹⁰ Among other things, the Mckinney decision examined the constitutional validity of provisions in the Ontario Human Rights Code³¹¹ which permitted discrimination in employment against those over 65. It found that those provisions violated equality rights under section 15 of the Charter but that they were saved under section 1 as being a reasonable limit prescribed by law in a free and democratic society. In applying section 1 of the Charter, the Supreme Court conducted a detailed analysis of the underlying policy concerns of government regarding mandatory retirement at 65, reflected in the contentious provisions of the Ontario Human Rights Code.

The case before the British Columbia Court of Appeal involved an employee of the Greater Vancouver Regional District (GVRD) who lost his employment as a waste plant operator two days before he was scheduled to start when management learned that he was 65 2 years old.³¹² He grieved that decision pursuant to procedures set out in a collective agreement. At the arbitration hearing management did not offer any material evidence regarding policy considerations that might justify mandatory retirement at 65. It took the view that it was not in breach of the British Columbia Human Rights Code³¹³ because the Code itself defined age for the purposes of prohibited discrimination as between 19 and 65. In other words, by the very terms of the Code its policy on mandatory retirement did not amount to a prohibited form of discrimination based on age. In support of its position, GVRD cited the Supreme Court decision in McKinney where similar definitions of age in the Ontario Human Rights Code had been found to be constitutionally valid.

The Arbitration Panel rejected the view of management that it was not obliged to offer any evidence to satisfy the requirements of section 1 of the Charter. It ruled that the Supreme Court in McKinney had in fact conducted two section 1 inquiries, one with respect to specific university retirement policies and another regarding the constitutional validity of contested provisions in the Ontario Human Rights Code. It reasoned that Ahad the SCC intended its decision regarding section 9(a) of the Ontario Code to establish that mandatory retirement is always a reasonable limit on the Charter right to equality, it need not have devoted as much attention as it did to the question of whether the mandatory retirement measures of the universities were justified under section 1 of the Charter. The separate and extensive analysis of that question...is consistent with the necessity for an employer seeking to justify mandatory retirement to make its case for a section 1 limit."³¹⁴ Accordingly, the majority of the Arbitration Panel ruled that GVRD management was required to present evidence so that a proper analysis under section 1 of the Charter could take place. Since it had failed to do so, the Panel determined that GVRD mandatory retirement policies, based as they were on age, were contrary to section 15 of the Charter.

The decision of the British Columbia Court of Appeal turns almost exclusively on the proper interpretation to be given the McKinney decision.³¹⁵ The majority decision of the Court of Appeal carefully separates the two inquiries under section 1 that the Arbitration Panel had identified. In its view, the Supreme Court in McKinney had found Athat the objectives of the mandatory retirement policies were pressing and substantial in the university context, that the policies were rationally connected to the objectives and that the measures used to obtain those objectives impaired the section 15(1) right as little as possible...[and] that the policies attempted to strike a balance between the claims of legitimate but competing social values such that deference should be accorded to them...@³¹⁶ The Court of Appeal took the view that this conclusion had been arrived at separate and apart from the issue of whether provisions in the Ontario Human Rights Code infringed equality rights under section 15 of the Charter. It pointed out that this latter issue had been the subject of extensive historical, economic and social analysis by the Supreme Court undertaken after having reached its findings on the specific retirement scheme of the university. Moreover, the Court of Appeal found that the Supreme Court had been focused mainly on the effects of mandatory retirement in the private sector when it assessed the validity of the Human Rights Code. It quoted the following passage from McKinney:

It must be remembered that what we are dealing with is not regulation of the government’s employees; nor is it government policy favouring mandatory retirement. It simply reflects a permissive policy. It allows those in different parts of the private sector to determine their work conditions for themselves, either personally or through their representative organizations. It was not a condition imposed on employees. Rather it derives in substantial measure from arrangements which the union movement or individual employees have struggled to obtain.³¹⁷

The Court of Appeal also conducted an exhaustive review of other decisions issued on the question of mandatory retirement. This review reinforced its conclusion that the Supreme Court had not intended to declare that Aall mandatory retirement policies in the public sector were saved under section 1 of the Charter simply because they do not contravene relevant provincial human rights legislation....[I]f the majority in McKinney had intended to resolve the issue of the constitutionality of mandatory retirement policies in the public sector for all employment of every kind, one would have expected them to say so in no uncertain terms.@³¹⁸

Returning to the specific circumstances of the case at bar, the Court of Appeal concluded:

Is it reasonable to conclude that an employer such as this respondent could simply enact an admittedly discriminatory policy, which on its face does not offend the Human Rights Code, and do no more to justify its policy than refer to McKinney? In my view, the answer to this question is "no". McKinney is not definitive of the constitutionality of all mandatory retirement policies in the public sector, without regard to the nature of the employment or the underlying factual foundation of each case. It does not relieve an employer of the onus of establishing that its policy of mandatory retirement is justifiable under section 1 of the Charter on an Oakes analysis. It may be that the onus on an employer will be readily met in some cases because of similarities between the case at hand and other decided cases, but the onus must still be satisfied.³¹⁹

One judge on the Court of Appeal (from a bench composed of three) dissented from the conclusion of the majority. After referring to different passages in the McKinney decision, the dissenting judge concluded:

Any obligation to advance a specific occupational justification for mandatory retirement at age 65 would add a second tier to the obligation of Code compliance and could call in question the general justification underpinning the Code provisions. If this general justification is sufficient to support the Code, I see no reason why it should not be equally sufficient to justify a policy that is in compliance with the Code. The alternative would create a tension between general and specific justifications for mandatory retirement, which could lead to uncertainty, and conflict in government employment. I think that it would be incongruous to impose a higher standard than the Human Rights Code upon this employer simply because it is a government entity when it is an employer within provincial jurisdiction. In my view, the provisions of the Code by necessary implication provide justification for the mandatory retirement policy under section 1 of the Charter as a matter of general law applicable to both private and public sectors within provincial jurisdiction.

It is unknown whether an appeal of this decision will be taken to the Supreme Court of Canada.³²⁰

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End Notes