The Gradual Abolition of a Decades-Old Standard
Historically, mandatory retirement at age 65 was a standard feature of Canadian employment for decades. This age was often linked to the Canada Pension Plan (CPP) and seen as a way to create job openings for younger workers. However, in the late 20th and early 21st centuries, changing demographics, increased longevity, and shifts in societal values prompted significant legal reforms.
The Early Pioneers: Quebec and Federal Public Service
The process of dismantling mandatory retirement was not uniform across the country. The earliest move came from Quebec, which abolished contractual mandatory retirement by legislation in 1982/1983. This set a precedent for later provincial actions. In the 1980s, protections against age discrimination were also extended to federal civil servants, though mandatory retirement provisions persisted for many federally regulated employees.
The Supreme Court's Initial Stance and Subsequent Shift
A major legal hurdle arose from the 1990 Supreme Court of Canada decision in McKinney v. University of Guelph. The court, in a controversial ruling, found that mandatory retirement at age 65 was a justifiable form of discrimination under the Charter of Rights and Freedoms. This decision, which suggested a decline in intellectual ability after age 60, reinforced the practice for over a decade. However, subsequent rulings, including the 1999 Meiorin decision, which strengthened the test for establishing a bona fide occupational requirement (BFOR), paved the way for future legislative reform by making it harder to justify age-based discrimination.
A Wave of Provincial Reforms Sweeps Canada
Following the evolving legal landscape and growing social pressure, Canadian provinces and territories began to dismantle mandatory retirement through their own human rights legislation. The final wave of reform occurred between 2006 and 2009:
- Ontario: The Ending Mandatory Retirement Statute Law Amendment Act took effect on December 12, 2006, prohibiting mandatory retirement at age 65.
- Newfoundland and Labrador: Abolished mandatory retirement on May 26, 2007.
- Saskatchewan: Eliminated the practice in November 2007.
- British Columbia: The law took effect on January 1, 2008.
- Nova Scotia: Abolished it on July 1, 2009.
By the end of the 2000s, all Canadian provinces and territories had enacted legislation to end mandatory retirement for the vast majority of workers. Federally regulated employees also received protections, with most mandatory retirement provisions phased out by 2009, although some limited exceptions for specific roles remained.
Exceptions to the Rule: Bona Fide Occupational Requirements
While the general rule in Canada is that mandatory retirement is prohibited, some limited exceptions exist. These are primarily for specific positions where an age limit can be demonstrated as a bona fide occupational requirement (BFOR). A BFOR must be rationally connected to job performance, adopted in good faith, and reasonably necessary for the job's purpose.
Examples of positions that may still have mandatory retirement based on BFOR include:
- Airline Pilots: Due to safety-sensitive nature of the work.
- Firefighters: Where physical demands and public safety are critical.
- Judges: While most workers are protected, federal judges in Canada are subject to mandatory retirement at age 75.
Impact on the Workforce and Considerations for Employers
Since the abolition of mandatory retirement, Canadian employers must navigate a new landscape. They can no longer force a capable employee to retire based on age alone. Termination must be based on just cause, such as performance issues, which must be assessed against objective, non-discriminatory standards.
| Aspect | Pre-Abolition Context (Typical) | Post-Abolition Context (Today) |
|---|---|---|
| Retirement Policy | Employers could enforce mandatory retirement, often at age 65, through contract or policy. | Mandatory retirement is prohibited unless a narrow BFOR exception applies. |
| Justification for Forced Retirement | Age alone was sufficient grounds for termination at the mandatory retirement age. | Employers must prove termination was for just cause, not age. Discrimination claims based on age are protected. |
| Focus of Policy | Focus was on workforce renewal and creating turnover. | Focus is on performance and ability, regardless of age. |
| Employer Risk | Lower risk of age-based wrongful dismissal claims at retirement age. | Higher risk of discrimination claims if older workers are terminated without just cause. |
| Workforce Demographics | Lower labor force participation among workers over 65. | Increased participation rates of older workers in the labour force. |
For employers, managing an aging workforce requires adapting policies related to performance management, training, and succession planning to ensure they are non-discriminatory.
Conclusion: The Right to Choose Your Retirement Path
The ending of mandatory retirement was a complex, phased-in process across Canada that was shaped by evolving jurisprudence and human rights advocacy. While it wasn't an instantaneous event, the outcome is clear: the law now protects most Canadian workers from being forced out of their jobs based solely on age, shifting the focus to individual capability and providing greater autonomy over one's career and retirement path. For a deeper look at the historical context of this change, review this publication by the Law Commission of Ontario.
