Thank you, Madam Chair, members of the standing committee.
Thank you for the opportunity to speak to the committee as you review Bill C-481. As the chair noted, with me is Mr. Philippe Dufresne, our Director of Litigation and Senior Counsel.
Requiring people to retire at a specified age is discrimination. The Canadian Human Rights Commission has called for repeal of the mandatory retirement provisions of the Canadian Human Rights Act since 1979, just one year after the commission opened its doors. Back in 1979, the commission's opinion was held by a minority. As recently as the 1990s, the Supreme Court ruled that although mandatory retirement was discriminatory, it was a permissible limit under the Canadian Charter of Rights and Freedoms.
The commission is aware of the rationale of the court at that time. Job progression, safety and pensions were, and still are, important. However, the commission maintains that these can be accommodated without perpetuating a discriminatory practice.
All Canadian jurisdictions, with the exception of the federal jurisdiction and, in a limited way, New Brunswick, have abolished mandatory retirement. Over the years, many federally regulated employers in the federal public service abolished it on their own initiative.
There is no evidence of any significant detrimental impact on employers, pensions, safety, or job progression.
Turning 65, or any other age, does not make someone less qualified to work. In our view, the qualifications of the person measured against the requirements of a job should be the relevant criteria in determining whether someone should be employed.
There are legitimate concerns about the impact of abolishing mandatory retirement in safety-sensitive occupations. Some may ask whether a 75-year-old pilot should be flying a plane. I suggest that this is the wrong question. The real question is whether the pilot is fit to fly the plane. The ability of a pilot may be impacted by a variety of factors unrelated to age, such as lack of sleep, stress, or medical conditions.
From a human rights perspective, what is required is an individualized assessment aimed at determining the ability of individuals to perform the requirements of their job. This should apply regardless of a person's age.
In some circumstances, a job requirement based on a prohibited ground of discrimination may be essential to the performance of the job. The Canadian Human Rights Act provides for the defence of a bona fide occupational requirement, or BFOR , in these cases. For example, bus drivers are required to have good vision. Although this requirement discriminates against people who are visually impaired, it is an acceptable form of discrimination in this occupation.
The act sets out that an employer seeking to prove a BFOR must also be able to show that accommodating people who do not meet the job requirement would impose an undue hardship, taking into consideration cost, health, and safety. As a result, should Bill C-481 be enacted, an upper age limit in specific job situations could be considered non-discriminatory if an employer is able to argue a BFOR.
You, of course, have already heard about the Air Canada pilots cases from the previous witnesses. The cases illustrate how a BFOR works. The Federal Court upheld the Canadian Human Rights Tribunal's finding that the mandatory retirement defence in the Canadian Human Rights Act was inconsistent with the charter. At the same time, the Federal Court sent the case back to the tribunal for a re-determination of whether Air Canada's age requirement was a bona fide occupational requirement for its pilots.
It is important to mention that mandatory retirement is not just about age. It has a disproportionate impact on certain groups in Canadian society. For example, women who have accumulated fewer years of work, or delayed their higher education due to child rearing, are particularly disadvantaged by mandatory retirement. Likewise, new Canadians and people with disabilities may be more disadvantaged by being forced to retire.
These were among the factors considered by the Federal Court in the Air Canada case, and were cited as elements in support of the Court's conclusion that the mandatory retirement defence in the Canadian Human Rights Act is not justified.
The commission supports this bill, and we thank you for the opportunity to be here to express that support.
We would be pleased to answer any questions you may have.