The End of Mandatory Retirement in Canada
For many years, the age of 65 was considered the standard retirement age in Canada, primarily because federal Old Age Security (OAS) benefits traditionally began at this milestone. However, beginning in the 2000s, both federal and provincial governments took significant steps to abolish mandatory retirement, recognizing it as a form of age-based discrimination. The federal government officially prohibited mandatory retirement for all federally regulated employees in December 2012, following earlier actions by provincial jurisdictions like Ontario, which ended mandatory retirement in 2006.
Today, Canadian human rights legislation protects employees from being forced out of a job based solely on their age. This means your employer cannot terminate your employment simply because you have reached 65 or any other age. The choice of when to retire is a personal one, based on your financial situation, health, and career goals, not an arbitrary number imposed by your employer.
The Legal Framework Protecting Older Workers
Protections against age discrimination in Canada are enshrined in human rights legislation at both the federal and provincial levels. The Canadian Human Rights Act prevents discrimination against individuals aged 18 and older in all aspects of employment that fall under federal jurisdiction. This covers employees of Crown corporations, banks, telecommunications companies, and others regulated by the federal government.
For the majority of Canadian workers, protection comes from provincial and territorial human rights codes. These codes prohibit discrimination based on age in hiring, promotions, training, benefits, and termination. The Ontario Human Rights Code, for example, defines age as 18 years or older for the purpose of protecting employment rights. Similar provisions exist across the country, ensuring broad protection for older workers.
Exceptions: The Bona Fide Occupational Requirement (BFOR)
While forced retirement based on age is generally illegal, there are very specific and narrow exceptions. These exceptions, known as Bona Fide Occupational Requirements (BFORs), apply when an employer can prove that a certain age is a reasonably necessary job qualification for a legitimate work-related purpose. The legal burden of proof for a BFOR is extremely high, and the employer must demonstrate:
- The mandatory age requirement is rationally connected to performing the job.
- The policy was adopted in good faith, based on an honest and sincere belief that it was necessary.
- The age requirement is reasonably necessary to ensure the safe and efficient operation of the business, to the point that it would be impossible to accommodate individual differences without causing undue hardship.
Examples of roles where a BFOR might apply, due to public safety concerns, include airline pilots, firefighters, or certain types of law enforcement officers. However, such exceptions are rare and are not a blanket allowance for employers to impose age-based retirement policies. As individuals live longer and healthier lives, demonstrating the necessity of an age-based requirement becomes increasingly difficult.
When an Employer Can Still Terminate Your Employment
The abolition of mandatory retirement does not mean an older worker is immune from termination. Employers can still dismiss employees for valid, non-discriminatory reasons. These reasons include poor performance, misconduct, or a legitimate organizational restructuring where the position is no longer required. The key is that the termination must not be motivated by or connected to the employee's age.
For an employer to dismiss an older worker for performance issues, they must follow proper procedures, including clear documentation of performance problems and a genuine effort to address them through improvement plans. If an employee is terminated shortly after turning 65, and without a documented history of performance issues, it could raise a red flag for a human rights tribunal and be viewed as a pretext for age discrimination.
Early Retirement Packages and Constructive Dismissal
Some employers offer early retirement packages as an incentive for older workers to leave voluntarily. While these are legal, employers must be careful not to exert undue pressure or coercion. If an employee feels they are being pushed out and has no real choice but to accept the package, it could be considered constructive dismissal. Constructive dismissal occurs when an employer makes a significant change to an employment contract that an employee doesn't agree to, effectively forcing them to resign. Such cases can be pursued through human rights tribunals or courts.
To avoid this, employers should ensure that early retirement offers are genuinely voluntary and that employees are given a reasonable amount of time and space to consider the offer without pressure.
What to Do if You Face Age-Based Pressure
- Document everything: Keep records of any conversations, emails, or written communication that suggests your age is a factor in your employer's decision-making. Note dates, times, and attendees.
- Speak up internally: If you feel comfortable, raise your concerns with your employer or a human resources representative. Sometimes, discriminatory behaviour is not official policy but the action of an individual.
- Consult with a professional: Speak with an employment lawyer or a representative from your provincial human rights commission to understand your rights and options. This is a crucial step for building your case.
- File a complaint: If internal attempts fail, you can file a human rights complaint with the relevant provincial or federal human rights commission. The Canadian Human Rights Commission offers guidance and information on the process.
A Comparison of Employment Situations Post-65
| Feature | Standard Employment | Employment with a BFOR |
|---|---|---|
| Mandatory Retirement | Generally illegal. | Legal, but only under specific, strict conditions. |
| Justification for Termination | Requires legitimate, non-discriminatory reasons like poor performance or restructuring. | Can include age as a factor, but only if proven to be essential for job function (e.g., public safety). |
| Performance Evaluation | Must be based on objective criteria, not age-related assumptions. | Performance is evaluated, but age may be a legally permissible factor in assessing ongoing capability. |
| Employee Choice | The decision to retire rests entirely with the employee. | Employee choice is limited if a mandatory retirement age is legally justified as a BFOR. |
| Legal Recourse | Strong legal protection against age discrimination through human rights legislation. | More limited recourse, as BFOR provides a valid defence for the employer. |
Conclusion: Your Decision, Your Future
The question, “can you be forced to retire at 65 in Canada?” has a reassuring answer for most Canadians. The vast majority of workers are protected from mandatory retirement by human rights laws designed to combat age discrimination. While some exceptions exist for specific, safety-sensitive occupations, they are highly regulated and require significant justification. Ultimately, the decision to continue working or to retire is yours, and understanding your rights is the first step toward a secure and dignified later life. The government of Canada provides information on federal labour standards, which can be found here: https://www.canada.ca/en/employment-social-development/services/labour-standards.html.
