Hi there. I've been asked here today to discuss the pension plan exception found in New Brunswick's Human Rights Act.
What's unique about New Brunswick's Human Rights Act is that it specifically allows for the termination of employment in relation to a valid pension plan. Unlike the other exceptions to discrimination found in the act, there is no requirement that the termination of employment be justified or reasonably necessary or that less restrictive options be explored. As long as the pension plan is a valid plan and is not a sham, it's permissible to terminate the employee at whatever age the plan calls for.
One of the issues we have with this is that the particular circumstances of the employee are not taken into consideration. Although this may work for an employee who has a fully funded pension or who has been employed with the company for the duration of his or her career, if the person has entered the workforce late or doesn't have a fully funded pension, the particular circumstances of that individual are not taken into consideration.
Many of the other provinces and territories have pension plan exceptions in their respective acts that allow for age differentiation with regard to the operation of the terms and conditions of the pension plan. But they do not specify that termination of employment is permitted. So it's generally considered that these exceptions would not allow for mandatory retirement in relation to a pension plan.
You have New Brunswick that specifically permits it and most of the other jurisdictions that don't. But there are a few other exceptions I thought I should bring to your attention, in case you weren't clear.
In Quebec, for instance, the charter allows for exclusion on the basis of age if the plan administrator can establish that there is financial risk to the plan based on actuarial data.
Just to review, in Quebec, if actuarial risk can be established, you can exclude somebody from employment. In Manitoba, the Pension Benefits Act specifically prohibits mandatory retirement. The Human Rights Code defers to the Pension Benefits Act, and it specifically prohibits it.
In Ontario, surprisingly, the Human Rights Code defers to the Employment Standards Act, in which age is still defined as being between 18 and 65. I would say that the commission recognizes that this is a problem. They've been recommending that the legislation be amended. But it appears that there's very little protection from mandatory retirement in relation to a pension plan in Ontario right now.
In conclusion, I think it would be fair to say that in Ontario and New Brunswick, termination of employment is permissible in relation to a pension plan. In Manitoba, it's definitely prohibited. In Quebec, it's allowed only if there's financial risk to the pension plan. And in the rest of the jurisdictions, it's likely not allowed.
Thank you.