Bill C-481 (Historical)

An Act to amend the Canadian Human Rights Act and the Canada Labour Code (mandatory retirement age)

This enactment amends the Canadian Human Rights Act and the Canada Labour Code to prohibit federally regulated employers — that is, private-sector employers subject to federal acts and regulations, as well as the federal public administration — from setting a mandatory retirement age.

Canadian Human Rights Act

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

Mr. Speaker, I am pleased to join the debate on Bill C-481, An Act to amend the Canadian Human Rights Act and the Canada Labour Code (mandatory retirement age), as introduced by my hon. colleague from Laval—Les Îles.

I will begin with some background on why this legislation is important. I will also discuss how the bill deals directly with the Canadian Human Rights Act, how it affects the federally regulated private sector, some safety concerns with the bill, and arguments against banning mandatory retirement. I will also address concerns of one of my constituents who could benefit from the bill.

The bill is designed to prohibit federally regulated employers from setting a mandatory retirement age. Let me begin by providing a bit of background. Currently there are no laws in Canada that require a person to retire at a specific age. As we know, federal civil servants are not obliged to retire when they reach age 65. However, there is an exemption for non-civil servants in the federally regulated sector such as AECL, Air Canada, CN, CMHC, Petro-Canada, et cetera, where mandatory retirement can be a condition of an employment contract, collective agreement or workplace policy.

The Canadian Human Rights Act, CHRA, is designed to protect Canadians from discrimination in many different areas, including age. The act applies to all federally regulated industries employing nearly one million Canadians. The act needs clarity.

Subsection 15(1)(b) protects the employer against allegations of discrimination based on age and years of service. Then subsection 15(1)(c) protects the individual based on age of retirement established for employees working in a similar position. The validity of this provision was challenged by a Canadian Human Rights Tribunal decision in Vilven and Kelly v. Air Canada. As hon. colleagues know, these two employees were reinstated with full pay and seniority.

Bill C-481 seeks to clarify the provisions in the act that do not allow an individual to file a complaint based on age. This undoubtedly would impact mandatory retirement in collective agreements and in workplace policy.

The bill also amends the Canada Labour Code to provide for payment of severance even if the terminated employee is entitled to a pension. There are no changes to the regulations for public servants as mandatory retirement was removed in 1986.

I realize the issue of safety is important and must be addressed for particular industries. I understand that mandatory testing would need to be conducted to ensure that the individual is still capable of doing the job. For pilots travelling on international routes, there are provisions in place for the countries they land in; however, in most cases it refers only to the captain. For example, there is no reason that the captain could not be the copilot for some of the flights using larger aircraft.

Some would argue that mandatory retirement creates opportunities and job promotions for younger workers. Some unions argue efforts to have benefits between the ages of 60 and 65 would be undermined.

In particular, I would like to address the concerns of a constituent of mine. This constituent contacted my office in August and we have been corresponding with her ever since. This legislation is something that could help her directly. Joan works for a federally regulated company. As she reached, and has passed, the age of 65, unfortunately, her job came under review. The company she works for agreed to extend her employment on a yearly basis subject to one rule, that she not receive sick pay. She has been told that her last day of work will be October 31, 2011. She is not ready to retire and she will be searching for temporary work after that date. She feels vulnerable, and quite frankly, who would not?

The current legislation discriminates against the needs of women who opt out of the workforce to raise their children or those who need to take care of aging parents and have not accumulated enough pension benefits to do so. These are the everyday problems Canadians want us to address with Bill C-481.

While there are legitimate concerns that need to be addressed by eliminating mandatory retirement, we must face some of the realities that affect our labour force, such as retirement savings, pensions, skills and labour shortages.

We all know that the baby boom generation is beginning to retire. This will lead to a lack of qualified labour. Often women and immigrants need to work longer because they may not have accumulated enough pension or savings to retire with dignity. People are living longer and healthier and want to continue to work.

The United States, New Zealand and Australia have eliminated mandatory retirement with no major consequences. It also allows some older workers with seniority to work part-time or to work flexible schedules. The provinces have eliminated mandatory retirement; however, there are provisions for mandatory retirement in jobs where physical ability is a requirement, such as in firefighting and policing. We should also take into account mental ability, particularly as it relates to airline pilots.

It is imperative that we do the right thing for the right reasons in this place. More importantly, it is our responsibility to keep our laws current, effective and adaptable with the times. What was acceptable and commonplace 20 years ago no longer is today.

I would like to reference a specific court case from 1990. I am sure most hon. members are familiar with it.

The case dealt with a professor at the University of Guelph. It was felt that even though the Ontario Human Rights Code violated section 15 of the charter, the code was saved as a result of section 1 of the charter because of the law at the time. In writing for the majority, Justice La Forest pointed out that mandatory retirement does involve a complex balancing of competing interests on which expert opinion is divided. In this regard, the courts should accord legislatures considerable room to manoeuvre in striking a balance. This balance is what the hon. member for Laval—Les Îles seeks to obtain with the passage of her bill.

Research shows and the available workforce evidence suggests that abolition of mandatory retirement is unlikely to have a major impact on the average retirement age or years of work in Canada. Further research shows that two-thirds of elderly workers choose to retire before the age of 65, and that 43% retire before age 60. The average age of retirement for all workers was 61 years in 1999. Of the Canadian population 65 to 69 years of age, 11.8% were active in the labour force in 2001. Immigrants and newcomers can spend more time in the workforce, and need to spend more time in the workforce, to build up their pensions. Employers are better able to plan for their workforce skills replacement. Elementary economic principles show that job displacement only takes place for a short period of time. The average is nine months to a year.

I support this bill. It is something on which we must move forward. Obviously, there are some concerns around safety and labour force impacts that need to be addressed, but I believe they can all be reviewed in committee. I thank the member for her hard work on this file. I will be voting in favour of this bill and I encourage all hon. members to do the same.

[Daniel Petit, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to have the opportunity to speak to the bill before us today, Bill C-481, introduced by the hon. member for Laval—Les Îles.

This bill would amend the Canadian Human Rights Act and the Canada Labour Code to eliminate the provisions that allow federally regulated employers to set a mandatory retirement age as an exception to the general rule prohibiting discrimination on the basis of age.

I am happy to say that I am in favour of doing away with mandatory retirement. However, for the reasons I will mention in my speech, I believe that this bill, as it currently stands, is much too broad.

However, I would first like to talk about our commitment to supporting Canadian seniors. As members already know, our government is working very hard to improve the lives of seniors in many ways. We created the position of minister of state for seniors. This is to bring the concerns of older Canadians to the cabinet table and to stand on their behalf. In 2007, we created the National Seniors Council to provide advice to the federal government on matters related to the well-being and quality of life of seniors. This year, one of the priorities of the National Seniors Council is labour force participation among seniors and near seniors.

More recently, we increased funding for the targeted initiative for older workers to assist unemployed older workers in vulnerable communities to retrain. This is a five-year, $220 million cost-shared initiative with the provincial and territorial governments. This shows our government's desire to encourage older workers to continue to contribute to the Canadian economy.

The legislative provisions allowing for mandatory retirement policies, which this bill would repeal, were written more than 30 years ago, at a time when mandatory retirement was both routine and part of our economic reality. In addition to many other stereotypes that have now been eliminated, there were often stereotypes about older workers. Thirty years ago, some people assumed that older workers could not do the job, that they were closed to new ideas or that they were not motivated to work because of their pension. It was assumed that younger workers should take their place.

Times have clearly changed. Today, average life expectancy is six years more than it was in 1977. Some people feel that they should be in the workforce longer and save more because they will be retired longer than they would have been in the past. Some people also want the freedom to take time off work or put their career on hold to raise children or take care of other family members. These people may want to retire later in life so that they can save more or acquire more pensionable years of service. And, despite progress in this area, women are largely affected by this issue.

Many people are staying in school longer than they were 30 years ago; as a result, they may join the labour force later. These people may also want to delay retirement.

We need to recognize that many people enjoy their work and gain a sense of personal satisfaction from it. Some people may want to retire early for any number of reasons; others do not. People should be able to choose when they want to retire based on their lifestyle, finances, health and priorities, as long as there are no compelling reasons to keep them from doing so.

At the same time, there are some real concerns that we need to consider if we intend to change the law. In some cases, employers may be completely justified in having a mandatory retirement policy, and the law should allow them to do so.

As written, the bill would repeal paragraph 15(1)(b) of the Canadian Human Rights Act, which authorizes mandatory retirement once an individual reaches the maximum age provided for by law or regulation. The bill goes a little too far. There may be cases in which it is necessary to pass a bill or regulations to set a maximum retirement age. One example that comes to mind is the Canadian Forces.

For a number of reasons, the Canadian Forces are a unique employer.

First, the Canadian Forces have to respect the principle of universality of service. Every time the Canadian Forces take part in international or national operations, including armed conflict, each member of the Canadian Forces must at all times and under any circumstances perform any functions that they may be required to perform other than the duties of their occupational specification. This includes the obligation to carry out military duties, such as combat, under extremely dangerous circumstances. Other federal government employees or members of the general public are not required to carry out this important duty.

This unique characteristic of the Canadian Forces requires a special approach to human resource management. To maintain a homogeneous and effective combat force, the Canadian Forces must have a mandatory retirement age to ensure a steady supply of personnel with the knowledge and experience required at each level. Fighter pilots, submariners and tank commanders cannot just be hired overnight. These people must devote many years to mastering their occupations within the Canadian Forces structure. These are the men and women we are counting on to become the future leaders of our Canadian Forces.

The Canadian Forces cannot maintain their international reputation for skills and excellence unless they continue receiving training that surpasses the minimum standard.

The Canadian Forces are a small force whose numbers are subject to a finite limit. Our armed forces cannot afford the luxury of maintaining individuals on active duty until their voluntary release, which would be decided by each member. This would lead directly to stagnation and have an impact on the effectiveness of the Canadian Forces in protecting Canada, its values and its interests.

If the Canadian Forces cannot maintain a mandatory retirement age, they could face serious financial and operational difficulties.

The Canadian Forces are unique in that they pay for all medical care for their personnel directly out of the departmental budget. An aging workforce within the Canadian Forces would increase the demands on available resources, which would in turn leave fewer funds available to properly carry out the forces' operational responsibilities.

That is why it is very important to ensure that the retirement age may be fixed by regulation under the authority of paragraph 15(1)(b).

This authority could also be useful in other cases, particularly in industries that are subject to international rules governing the maximum age for carrying out certain duties.

Furthermore, these policies are often negotiated as part of collective agreements and are sometimes linked to pension arrangements. Employers and unions will need some time to renegotiate these provisions and to make the appropriate changes to pension plans. Some employers will need time to determine whether they have sufficient information to impose a mandatory retirement age as a bona fide occupational requirement.

That is why it is very important to establish coming into force provisions; otherwise, making such a significant change without allowing employers and unions enough time to adjust could create some undesirable situations.

Thank you, Mr. Speaker, for allowing me the opportunity to speak to this matter. The question of mandatory retirement is both important and complex. I am proud of the work our government has done to support older Canadians.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I want to compliment le député pour Laval—Les Îles for this timely and important piece of legislation. I was very pleased to second this private member's bill because of its importance and timeliness.

I would like to start with a bit of my personal background that has led to my strong support for ending mandatory retirement.

Bill C-481, An Act to amend the Canadian Human Rights Act and the Canada Labour Code (mandatory retirement age) would bring Canada more into line with other countries and with the provinces and territories. My personal link to this legislation is through my mother Charlotte Murray. Charlotte went back to university when she had three children. Like many women, she entered her career and discovered her passion as an architect in mid-life, as a mature student. She graduated as an architect and went on to do her master's degree in architecture, and became a partner in a very well reputed firm in Vancouver. Charlotte retired at age 75.

In the last seven years of her career she was the lead architect for a major restoration renovation of Christ Church Cathedral in downtown Vancouver. It was the strength of her experience over those many years and her wisdom as an elder in society that allowed her to help the cathedral navigate through the complexities of a restoration process. She brought into the conversation those who felt there should be no change and those who felt there needed to be change, those who were supported by the cathedral through its compassionate programs and the many people who had ideas and interests in this project. As a well-respected and experienced heritage restoration architect, Charlotte Murray was able to steward this project through to a successful conclusion, and I will add that it was award winning. I am very proud of this project that my mother accomplished.

Had there been mandatory retirement in the private sector, which there was not, she would have had to give away her seal as an architect and not undertake projects like that in the last 10 years of her career. This is an example of how the requirement to retire due to age is discriminatory.

To enable people to work, if they are interested in doing so and able to contribute, is important on an individual basis and also on a collective basis for our society. It gives individuals a choice. It is also a compassionate option, especially in cases involving new Canadians or women and others who may have entered their careers later in life. These individuals are still getting fulfilment from their jobs and they are still interested in contributing to society. They may also need the income and the building of their pension program beyond the age of 60 or 65. It is a choice and a compassionate choice for individuals.

However, it also is an important policy and legislation to contribute to societal benefit. As a society we need to draw on the strengths of all those who have something to contribute. Our elders, especially, have a richness of experience and a richness of wisdom from which society can benefit. To ask those people who would like to continue to contribute through the workplace to step aside and stay home would not benefit society.

I have another connection with this legislation that I would like to mention.

Having been a member of the legislative assembly in British Columbia, I identified mandatory retirement as an issue in provincial legislation and brought it forward for examination by my riding association as a potential policy to put forward to the provincial convention. This was in about 2003 or 2004.

I engaged the attorney general of the day in some conversations about what it would take to end mandatory retirement in British Columbia. That policy of ending mandatory retirement was adopted by the provincial B.C. Liberal Party and went on to become law on January 1, 2008. I felt strongly about that in my provincial career. I was able to nudge things forward there, and I am very pleased to support the legislation today.

The last personal link I will mention is this. As the minister responsible for the B.C. public service agency earlier in my political career, it was clear that the gaps being left by the retirees in the public service would be hard to fill. A very large percentage of the civil service in British Columbia would be eligible to retire within the next five to ten years, taking with them all that wealth of experience and dedication to the public and public service. That group was not affected by mandatory retirement, but it highlighted the need for society to find all the ways possible to enable those people who wanted to continue to contribute past a certain age to do so. I worked with the deputy minister to find ways that we could draw people back into contributing to British Columbians.

I understand that only 2% of federally-regulated organizations are subject to mandatory retirement. However, that is still a lot of people when we think about the individual lives that can be touched by being forced to retire well ahead of where one feels still able and interested in contributing. That would be about 12,000 organizations of 840,000 people who are subject potentially to mandatory retirement provisions now and who would be freed from that with this legislation. Approximately 17,000 people are affected by this and could be freed from those restrictions.

We know that not everyone will want to continue working past the age that they are currently under a mandatory retirement provision. If it is like the general public, perhaps 10% or 12% of these 17,000 people would chose not to retire when they otherwise would have been forced to so. That is a large number of people for whom we could help make a compassionate choice, those who may need to continue to boost their pensions or may need to continue to have a paycheque. Perhaps they went into the workforce, as did my mother, in their thirties or early forties, and are just on a roll at the time that they are subject to mandatory retirement.

With demographic changes in our society, which was part of what I was experiencing with the B.C. public service agency, fewer young people are coming into the workforce, which is a potential disconnect between the jobs of the future and the competencies that people will have to hold those jobs. Any small or large measures we can consider would be important to address the potential skills shortages in the future.

It is important for members of Parliament to think not only about the individual compassionate good, but also the collective good. In my view, this is an important policy that addresses both of those aspects of good public policy. Therefore, I am pleased to support it.

Once again, I congratulate the member of Parliament for Laval—Les Îles for her initiative in bringing this forward.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Mr. Speaker, it is always a privilege for me to speak in Parliament to represent the voters of Laval—Les Îles, and I am honoured by the confidence they have in me to defend their interests in Ottawa.

It is a commitment I take very seriously as a legislator in the duties I perform each day on their behalf, and by extension, on behalf of all the residents of Canada, regardless of the province, of the race, of the ethnicity and, in this case, of their age. There should be no distinction. Upholding the Charter of Rights and Freedoms on their behalf is part of our commitment.

I wish to thank my hon. colleagues for giving me the opportunity to present and discuss Bill C-481.

First, I would like to recognize my colleague, the member of Parliament for Edmonton East, Alberta, for his generosity in giving me the opportunity to complete the second hour of debate today instead of next February. I also thank my distinguished colleague, the member for Souris—Moose Mountain, Saskatchewan, and Parliamentary Secretary to the Minister of Human Resources and Skills Development and to the Minister of Labour for his thoughtful and reasoned remarks and support.

I want to assure the parliamentary secretary that the amendments he proposed and other amendments proposed on behalf of the government will be carefully reviewed. They certainly have merit. I hope that our discussions and potential amendments will be perceived as amicable when the time comes in committee. If so, this important and highly anticipated piece of legislation could be passed quickly. I want the parliamentary secretary to know that the current wording of paragraph 15(1)(b) of the Canadian Human Rights Act was not the main problem raised by the tribunal or as part of the Federal Court judicial review.

Nonetheless, as we looked at what other legislative measures may be needed, this clause was raised as an appendage that might no longer be needed. However, his points are well taken with respect to the military.

I would like to take this opportunity to correct a few myths about mandatory retirement.

People across Canada are working well past the age of 65 in 2010. Even though some 400,000 Canadians aged 50 to 75 indicated in the Statistics Canada survey that they had previously retired, 58% of males had returned to work, with 32% returning because of financial reasons, the second most important reason.

The bill would impact only about 10% of the Canadian workforce. These are federally-regulated private sector organizations. They include scientists and engineers, as well as the railway, for example.

I want to remind hon. members of McKinney v. the University of Guelph in 1990. At the time, the Supreme Court ruled that paragraph 9(a) of the Ontario Human Rights Code, which limited protection under the code to people between 18 and 65, violated section 15 of the Charter, but was saved by section 1. Why? Because that was the norm.

The irony is that the judges who heard the professor's case and other similar cases were over 60.

It is therefore incorrect to believe that everyone continues to work by choice.

We can fast forward 16 years. The Ontario legislature, the legislature of my province of Quebec and all other provincial and territorial legislatures of this land have abolished mandatory retirement in their human rights codes.

I wish to make one last point on this.

The important thing, as one of the Supreme Court justices said in 1999 in Tawney Meiorin, is this:

Recognition of the equality of each individual must be built into workplace standards. These requirements apply even in the context of unionized workplaces.

Many people told me stories about their professional and personal lives when they found out that I was going to introduce this bill. It is clear that this bill is timely and that it will be useful and necessary for the target population.

[The Acting Speaker, Conservative, Barry Devolin]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Acting Speaker, Conservative, Barry Devolin]

I declare the motion carried. Accordingly the bill stands referred to the Standing Committee on Human Resources Skills and Social Development and the Status of Persons with Disabilities.

(Motion agreed to, bill read the second time and referred to a committee)

Suspension of Sitting

[The Acting Speaker, Conservative, Barry Devolin]

The House will now suspend until 12 p.m.

(The sitting of the House was suspended at 11:53 a.m.)

(The House resumed at 12 p.m.)

The House resumed from December 3 consideration of the motion that Bill C-54, An Act to amend the Criminal Code (sexual offences against children), be read the second time and referred to a committee.