Human Resources Committee on Feb. 15th, 2011

[The Chair (Ms. Candice Hoeppner (Portage—Lisgar, CPC)), Conservative, Candice Bergen]

Good morning, everyone.

I'd like to call this meeting to order. This is meeting number 44 of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities.

Pursuant to orders of the day, we are looking at Bill C-481, An Act to amend the Canadian Human Rights Act and the Canada Labour Code (mandatory retirement age).

We have witnesses with us for the first 45 minutes. After that 45 minutes we will have a new set of witnesses, and following that we will be looking at the bill clause by clause. So we do have a very aggressive agenda today.

We are very happy to have with us today Seamus Cox from the New Brunswick Human Rights Commission. From the Canadian Association of Retired Persons, we have Susan Eng, vice-president, and Michael Nicin, government relations. As well we have a representative from the Canadian Chamber of Commerce, Susanna Cluff-Clyburne, who is the director of parliamentary relations. Thank you all for being here.

I would ask each one of the organizations to take five minutes for their presentation. I apologize for the short amount of time, but that will give us time for questions and answers.

I will begin with the Chamber of Commerce. Would you please begin with your five-minute presentation?

Thank you.

[Susanna Cluff-Clyburne, Director, Parliamentary Relations, Canadian Chamber of Commerce]

Absolutely, and thank you for the opportunity to be here today.

The Canadian Chamber, as you probably know, represents businesses of every size in every region of the country. We count amongst our members several federally regulated employers in the communications, financial services, and transportation sectors.

Last fall the Canadian Chamber of Commerce released a policy paper entitled “Canada's Demographic Crunch: Can Underrepresented Workers Save Us?” In that paper we called upon the federal government to amend the Canadian Human Rights Act to eliminate mandatory retirement for persons aged 65 and older. This recommendation recognizes the reality that Canada is undergoing a major demographic shift. Canada's population and its workforce are aging. Last year nearly all growth in the labour force stemmed from immigration. Some business sectors indicate they are facing shortages of the skilled people they need to remain competitive and to grow. Canada's businesses are concerned that these shortages will continue as more baby boomers reach traditional retirement age.

What must Canada do to ensure it has sufficient skilled people to replenish its workforce? While many look, quite rightly, to immigration as an answer, we need to look at the potential of our homegrown human resources as well. We need to provide more opportunities for those Canadians who are underrepresented in our workforce. These include older workers, our aboriginal peoples, and peoples with disabilities.

In light of our shrinking workforce, arbitrarily fixing a retirement age is unwise. The mandatory retirement age of 65 hearkens from another era. Things have changed. People live longer, healthier lives, and many wish and/or need to work past what has been considered the traditional retirement age. Older workers have a wealth of skills, knowledge, and experience, which are tremendous assets for a business in a country facing a labour supply crunch in their day-to-day operations and in the transferring of human capital and knowledge to younger workers.

Progress has been made to encourage older workers to stay in the labour force, and efforts must continue to remove any stigmas and institutional deterrents to the continued participation of older Canadians in the workforce. Most federally regulated employers no longer impose a mandatory retirement age, and the provinces and territories have implemented legislation to eliminate it. We urge the federal government to follow suit.

That said, just as arbitrarily setting a mandatory retirement age is outdated and economically unwise, arbitrarily allowing anyone at any age to perform any occupation is equally so. Therefore, in our recommendation to the federal government in last fall's report, we also said that employers need to have the flexibility to maintain occupational requirements based on age that exist for safety reasons. Federally regulated employers provide essential services to Canadians. Their needs and those of their employees are very different. Therefore, the laws and regulations governing the relationships need to be flexible enough to protect their respective rights and serve Canadians safely and effectively.

We recommend that Bill C-481 be amended to explicitly permit federally regulated employers to apply mandatory retirement ages in specific occupations associated with a risk to the safety of the public and/or other workers. As you have heard from other witnesses, many pension, benefit, and insurance plans are based upon the traditional retirement age of 65. We also recommend that Bill C-481 be amended to explicitly allow employers to continue to treat employees differently based on their age for pension and benefit plans. This would recognize the potential for the added cost to employers of providing these benefits to older workers and is consistent with the approach taken by the provinces and territories. Bill C-481 also needs to be amended to explicitly state that where an employee is involuntarily terminated due to safety concerns and is eligible to receive a pension, no severance is payable. The change Bill C-481 proposes making to the Canada Labour Code leaves this open to interpretation.

Employers will need time to modify their business practices to accommodate any changes resulting from the passage of Bill C-481. Therefore, should Bill C-481 become law, we propose a coming into force date of no less than two years following royal assent.

In conclusion, the federally regulated members of the Canadian Chamber of Commerce agree that the time has come to eliminate mandatory retirement. However, any legislative changes and supporting regulations must explicitly enable these employers to manage their businesses and employee relationships in a manner that ensures that they can continue to serve Canadians safely and efficiently.

Thank you.

[The Chair, Conservative, Candice Bergen]

Thank you very much for that presentation.

We will now go to the Canadian Association of Retired Persons.

Ms. Eng, please go ahead.

[Susan Eng, Vice-President, Advocacy, Canadian Association of Retired Persons]

Thank you very much.

Thank you for having me here today.

CARP is a national, non-profit, non-partisan organization with 300,000 members across the country in 41 chapters. We advocate for social change that will improve the quality of life for all of us as we age. Our advocacy covers financial and retirement security; equitable access to health care; and such human rights issues as freedom from elder abuse, ageism in the media, and age discrimination, especially in the workplace.

Consequently, we appreciate the opportunity to appear before the committee to voice our support for Bill C-481 and to encourage Parliament, through this committee, to expedite passage of the bill.

Bill C-481 will remove paragraph 15(1)(c) from the Canadian Human Rights Act. We believe this provision amounts to legislated age discrimination, and the courts have found it to be contrary to the Canadian Charter of Rights and Freedoms. The Federal Court has said that paragraph 15(1)(c) has “the effect of perpetuating the group disadvantage and prejudice faced by older workers” by promoting “the stereotypical view that older workers are less capable, or are less deserving of recognition or value as human beings or as members of Canadian society”.

CARP has pursued the elimination of mandatory retirement over the years and has worked with various provincial jurisdictions to repeal the equivalent provision in their own human rights codes. At this point, every Canadian jurisdiction has so eliminated--except for the federal jurisdiction. In the federal jurisdiction, an estimated 840,000 employees across the country are still subject to mandatory retirement because of the operation of paragraph 15(1)(c). The federal government is the last jurisdiction in Canada to hold onto legislated age discrimination.

As a public interest advocacy organization, we try to ensure that we fairly represent the views of our membership. We do our best to keep them up to date on various developments so that their views are in fact well-informed. We communicate with our members through our magazine, through the website, and increasingly through an e-newsletter that reaches some 85,000 opt-in subscribers. We've kept them up to date on the progress of a number of issues, including this one and the Air Canada pilots case.

Even more instructive is the polling that we're able to conduct. We seldom get fewer than 1,500 responses, and generally get 3,000 to 5,000 responses. I've provided you with the results of two recent polls. You will have that in your materials. One result we issued just this Friday, and I'll give you the conclusions of that poll.

This is what the CARP members wanted this committee to hear from them. CARP members are solidly in favour of passing Bill C-481 immediately. They see it as legislated workplace discrimination against Canadians who must work. Fully one half say that they will not vote for their own party if it blocks passage of the bill, and the vast majority say that no Canadians should have to go through the experience of the recently reinstated Air Canada pilots.

Add to that the fact that older Canadians are the most engaged and consistent voters--70% of those over age 60 vote regularly--and you have a message from your most loyal but vigilant constituents that should not be ignored.

We've called on the federal government over the years to remove paragraph 15(1)(c). Most recently, CARP's call to the parties to act in the wake of the August 2009 decision in Vilven and Kelly supports the introduction of Bill C-481.

In the absence of parliamentary action, the courts have ruled that the section violates the Canadian Charter of Rights and Freedoms, as it denies equal protection and equal benefit of the law to workers over their normal retirement age. As a result of these decisions, and after seven years of costly litigation, two airline pilots were recently reinstated with full seniority. They appeared before you last week.

In coming to these conclusions, the courts have done what Parliament has failed to do, and that is to invalidate legislated age discrimination. However, because the rulings apply only to the individuals before the courts, it means that any other pilot, or indeed any other Canadian, has to go through a similarly arduous process in order to assert his or her right to keep working.

The courts have also made it clear that legislated age discrimination has no place in today's society. I've included some quotes on that in the material here.

The recently released Federal Court decision from just two weeks ago, February 3, unreservedly found that the section was not reasonably justified “in a free and democratic society” under section 1 of the charter. Thus, it is reasonable to expect that each of the nearly 200 cases now before the Canadian Human Rights Tribunal will be decided in the same manner. However, because of the failure of Parliament to act, you will waste many more millions of tax dollars in order to see that these people will go through the same process over again.

If my time is up, I will conclude that this is an important time for Parliament to act. It's a time to show some leadership.

Thank you very much.

[The Chair, Conservative, Candice Bergen]

Thank you very much.

We'll now go to Mr. Cox, please, for five minutes.

[Seamus Cox, Lawyer, New Brunswick Human Rights Commission, As an Individual]

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.

[The Chair, Conservative, Candice Bergen]

Thank you very much.

We will have time for one round of questions, a six-minute round. If you'd like to share it with one of your colleagues, you can. If not, take the whole round. Just as a reminder, the six minutes includes the questions and the answers. If you want to keep an eye on me, I'll let you know where we are with the time.

We'll begin with Madam Folco, for six minutes, please.

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

Thank you very much, Madam Chair.

I'd like to ask the question to Madam Eng to begin with and to anyone else who wishes to add to her answer. It has to do with our famous paragraph 15(1)(c).

Paragraph 15(1)(c) turns out to be a huge problem. My assistant sent me an e-mail this morning about an article that appeared in one of the English language newspapers, which tells me, and I'll quote here, that Judge Mactavish declared that the previous court had “erred in finding Air Canada had failed to demonstrate that age is a bona fide occupational requirement for its pilots”.

The argument of Air Canada at the time was that it was nearly “impossible to schedule its pilots within International Civil Aviation Organization rules”.

So I wonder, Madam Eng, if you would like to address that in terms of what this bill intends to do with paragraph 15(1)(c), which is actually to completely replace it.

[Susan Eng]

The news article placed in the papers today indicates the long and torturous process that this whole issue has taken through the courts. And it's not finished. That is why we are asking Parliament to act as quickly as possible.

In actual fact that's a misappreciation of the actual finding of the court. The court was unequivocal, saying that paragraph 15(1)(c) in fact offended the charter and it was not saved by section 1 of the act.

There was a technicality in relation to something that applies only to pilots, and that is a little more technical than I'm in a position to explain. It has to do with accommodating and scheduling pilots of a given age; they have to be different ages in the cockpit. But that is not enough to undermine the essential holding of the court, which is that this section on its face not only offends the charter but it's not saved by section 1 of the charter.

Of course it is anticipated that Air Canada and the pilots union will appeal this to the next level of court. That is why we implore this committee and Parliament to move as quickly as possible to finally, once and for all, end legislated age discrimination.

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

From what I understand, we've had two court decisions, plus the decision of the Human Rights Tribunal, that have all said the same thing, in the sense that paragraph 15(1)(c) is not acceptable according to the charter. In fact, as you know, this is the reason this bill was brought forward by me.

Madam Cluff-Clyburne, would you like to comment on that?

[Susanna Cluff-Clyburne]

We're not challenging the elimination of mandatory retirement from the Canadian Human Rights Act. All we're asking for on behalf of our members is that these companies that do provide critical services to Canadians have measures in place where they can manage their businesses, whether it's a question of the safety of--

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

You're not challenging it, Madam Cluff-Clyburne, but my impression is you're giving it a slow death. Either you're discriminating or you're not discriminating. It can't be black, white, and café au lait. It has to be one or the other.

This bill, C-481, says there is discrimination. If there is discrimination against one group, then all the people within that group have to be affected by Bill C-481. This is where I take exception to the amendments you proposed to this committee.

It seems to me, and I'm not an expert, that when you talk about discrimination you must include all the members within a particular group who have identical characteristics. From the time you withdraw one group and say, well, they're not being discriminated against even though they're under the same exceptions, then you're not respecting what Bill C-481 is trying to put forward.

[Susanna Cluff-Clyburne]

We'll have to agree to disagree on that, then, because our members believe they need to have measures in place to protect the health and safety of their employees and of Canadians.

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

Madam Eng.

[Susan Eng]

Actually the pilots case is instructive, in that the competency and their safety were tested on a regular basis. They absolutely guarantee that every pilot who's flying the plane is safe and competent to fly that plane. That's a very good example of the kind of workplace testing that is possible. They test all the pilots the same way. To distinguish on the basis of age instead of actual competence I think is wrong. There's no need for it.

While the chamber is right to worry about safety concerns, there are ways of dealing with that without using age as the criteria.

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

Thank you.

[The Chair, Conservative, Candice Bergen]

You have 30 seconds.

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

Never mind.

[The Chair, Conservative, Candice Bergen]

All right. We'll then go to Mr. Lessard, please.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

Thank you, Madam Chair.

I want to thank the witnesses for being here this morning to give their statements.

In response to Ms. Cluff-Clyburne's concerns, I would say that as soon as the age limit is removed, the workers who will be laid off will be those who no longer meet the regular requirements of the job. She would agree, I'm sure, that a 40 or 50 year old could also cease to meet the requirements. It is up to the employer, who will have to justify the decision.

Ms. Cluff-Clyburne, my question is for you, and it has two parts.

First, you raised a question that came up last week but went unanswered because we ran out of time. You said that once the retirement age is taken out of the equation, employers no longer have to provide any compensation to retiring workers. What kind of compensation did you mean? Enhanced pension benefits because the person worked longer? Were you referring to compensation related to employee benefits? What type of compensation were you referring to?

[Susanna Cluff-Clyburne]

What we're referring to is if there is a case where an employee is found not to be able to perform the particular job they are to perform for safety reasons and they are eligible for a pension, then there should be no severance payable at that time. But it would only be in the case where the employee is already pension eligible.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

Is that not just another form of discrimination based on age? For example, if your employer gives you a two-week termination notice, minimum wage legislation normally entitles you to receive two weeks' pay. That is the most common type of severance.

Is that what you mean?

[Susanna Cluff-Clyburne]

No. I'm referring to where it's been demonstrated by the employer, through whatever means the particular employer employs, that the employee is no longer able to perform that particular function in a safe manner and the person is already eligible for a pension; then the person would not be eligible for severance on top of their pension. Whatever arrangements there are for severance I would think would stay in place. It's just the question of whether or not they would be eligible for their pension as well as severance pay.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

I have worked in labour relations for more than 30 years, and I still do not know what type of compensation you mean. If a person receives a separation notice, regardless of whether they are 35 or 68 years of age, they are entitled to the same benefits, I would think. If I am mistaken, please explain further.

The other part of my question has to do with the deadline for implementing the bill, once it receives royal assent. You suggest two years. We will have to make a decision on that. I think we should indeed set a deadline. Last week, we heard one year.

What specific measures will the employer or the government—but the employer, especially, since that is who we are talking about—have to take after the bill receives royal assent and before it comes into force? I do not get the sense that there are too many.

[Susanna Cluff-Clyburne]

I can't speak on behalf of individual companies. Since I was asked to appear last week, I have spoken with several of our members who are in the federally regulated sector, and they have said that in order to make the adjustments necessary to their benefits plans, to their business operations, to accommodate the elimination of the mandatory retirement age, they would like to have a minimum of two years to be able to do that.

If I recall correctly, I believe last week's testimony said a year to 18 months, if I'm not mistaken. So on their behalf, we're asking for a minimum of two years.