November 23, 2005
The Ontario Human Rights Commission (“the Commission”) welcomes this opportunity to provide comments on Bill 211, the Ending Mandatory Retirement Statute Law Amendment Act, 2005.
The Commission commends the government for bringing forward this legislation, and supports its broad intent. However, the Commission has concerns about some provisions of Bill 211.
Mandatory retirement raises a host of complex social, economic and human resource issues. At its core, however, lies a fundamental issue of human rights. Older persons are often subject to a host of negative stereotypes and assumptions about their worth, abilities, and contributions to society. Older workers are often unfairly perceived as less productive, less committed to their jobs, less dynamic or innovative, and unreceptive to change. It is the experience of the Commission that this ageism is ingrained in societal structures and attitudes, and that it can serve to disempower and devalue older persons in important aspects of their lives. Ageism and age discrimination have the same impact on those that experience them as unequal treatment based on other grounds of the Ontario Human Rights Code (“the Code”), and should evoke the same sense of moral outrage and condemnation.
In the year 2000, the Commission launched a province-wide public consultation on age discrimination. It received a tremendous response from the public. Many of the submissions that the Commission received focussed on the impact of mandatory retirement. This is an issue that profoundly affects the lives of thousands of Ontarians. The vast majority of those who made submissions on mandatory retirement were in favour of ending it. In its 2001 consultation report, A Time for Action, the Commission recommended that the Code be amended to eliminate the blanket defence to mandatory retirement at age 65 and to extend protection against age discrimination to workers over 65.
The Commission made this recommendation based, not only on the strong expressions of public concern that we heard, but also on the fundamental human rights principles of participation, individualization, and dignity.
Employment is central to an individual’s opportunity to participate fully in society and to feel a part of the community. Not only does employment have a major impact on a person’s economic status, it also promotes independence, security, self-esteem and a sense of contributing to the community.
Mandatory retirement involves imposing an employment decision based solely on age, and not a person’s ability to do the job. Mandatory retirement embodies a set of assumptions about the worth and abilities of older workers. At the core of human rights is the entitlement to be considered as an individual first, and not simply as a member of a group, and to be judged on one’s individual skills and abilities. As a society, we would not find it acceptable if individuals were to be terminated from employment on the basis of any other ground of the Code, such as race, sex, or disability.
Mandatory retirement impacts on the dignity of older employees. Being told that one is no longer a valued employee, solely because of one’s age, can have a profound psychological and emotional impact.
As well, mandatory retirement may have a particularly serious and disproportionate impact on individuals belonging to vulnerable groups. Women who leave the paid work force to raise children or care for family members do not receive income and cannot contribute to the Canada Pension Plan (CPP) for the years they do not work outside the home. Moreover, when they do return to paid work once they no longer have caregiving responsibilities, they may face retirement just as they reach the peak of their careers or earning capacity. Women who are part of the paid labour force but who tend to work in sectors where employer pension plans are not available, in part-time or temporary employment and in jobs that earn considerably less than men, face a different challenge. These women are unlikely to be able to accrue a large enough CPP, RRSP or private pension to allow them to retire to a decent standard of living. Women are therefore often at real risk of being forced into poverty as a result of mandatory retirement.Recent immigrants face many of the same difficulties. They may have a shorter period of employment in Canada upon which to build up a pension and they, along with racialized persons and persons with disabilities, also tend to have more restricted access to the labour market, lower incomes and greater unemployment during their working lives. As a result, these groups also face serious consequences because of mandatory retirement.
The Commission therefore believes that mandatory retirement is a serious form of age discrimination, and commends the government for bringing forward legislation to end this practice. The Commission supports the general intent of Bill 211.
However, the Commission has grave concerns about some aspects of Bill 211 – specifically, the provisions relating to access to benefits, and to workers’ compensation.
Bill 211 leaves intact the provisions of the Employment Standards Act and Regulations that permit employers to discriminate in the provision of benefits against employees who are age 65 and older. This includes medical and dental benefits, as well as life and disability insurance. Employers are not prohibited from providing lesser, or no benefits at all, to employees once they reach age 65. Essentially, the provision of benefits to employees over age 65 is at the discretion of employers. There may be no difference whatsoever between the skills, abilities and job duties of an employee aged 64 and one aged 65, but one may have access to benefits, while the other does not. Without amendments to Bill 211, employees who are denied benefits, or receive lesser benefits solely because of their age will not be entitled to file a human rights complaint on the basis of age discrimination.
Many of those who continue to work past age 65 do so because they cannot financially afford to do otherwise. As noted earlier, this may be particularly true for women, recent immigrants, racialized persons, and persons with disabilities. These are among the most vulnerable of employees, for whom the denial of benefits will have a serious economic impact.
Permitting employers to arbitrarily cut off benefits to older workers, rather than making a determination on a rational basis, is discriminatory and unfair. There are well-established principles in human rights law for dealing with benefits and insurance issues. For example, section 22 of the Code creates a defence for insurance contracts, including life, accident, sickness and disability insurance, which permits them to make distinctions on grounds such as age, sex, disability and marital status where there are reasonable and bona fide grounds to do so. Similarly, Regulation 286/01 under the Employment Standards Act permits life insurance and disability benefit plans to make distinctions on grounds such as age, sex and marital status, when such distinctions are made on an actuarial basis. The Supreme Court of Canada has supported this kind of measured approach in its decision in Zurich Insurance Co v. Ontario (Human Rights Commission) and the Commission believes that it is preferable to the use of a general exemption. This approach recognizes both the importance and primacy of human rights principles, and the requirements of operating sustainable group insurance and benefits schemes. It puts the onus on employers and insurance providers to ensure that distinctions made on Code grounds are rational and defensible. It also permits human rights oversight where necessary. These kinds of defences have historically operated well and appropriately. The Commission therefore recommends that Bill 211’s sweeping and arbitrary exemption from benefits protection for persons aged 65 and over be replaced by a more circumscribed defence for employers and insurance providers, whereby distinctions in the provision of benefits are approached on a bona fide and reasonable basis, with the employer bearing the onus of demonstrating that the practice is justified in the circumstances.
The Commission also has concerns regarding Bill 211’s approach to workers’ compensation issues. Bill 211 amends the Workplace Safety and Insurance Act, 1997, (“WSIA”) to add a primacy clause, stating that the provisions of that act, the regulations under it, and any decision or policy under it that requires or authorizes a distinction made because of age shall apply despite the provisions of the Code
This is an extremely broad clause. It authorizes distinctions made, not only on the basis of age 65, but any age. It essentially permits the workers’ compensation scheme to be exempted from all requirements of the Code regarding age. It permits no challenge or oversight under the Code. The Commission believes that this exemption is over broad, and not in keeping with the Code’s own primacy clause.
The Commission has concerns regarding particular provisions of the WSIA that will be shielded from review under this clause. For example, section 41 of the WSIA requires employers to re-offer employment to those employees who have been unable to work because of injury, and have been employed by the employer for at least one year prior to the injury. This includes a duty to accommodate the employee, to the point of undue hardship. This entitlement lasts for two years from the date of injury, or one year from the date the employee is able to do the essential duties of the job – or until the employee reaches age 65. The import of the exemption contemplated by Bill 211 is that workers who are injured when they are near, at or over age 65 lose one of their most important rights under workers’ compensation legislation, regardless of their individual abilities and medical status and without any individualized assessment of their circumstances.
It is unclear why older workers should be considered ineligible for re-employment and accommodation, based solely on their age. This is inconsistent with the widely recognized right under the Code for employees with disabilities to be accommodated in the workplace, and with the human rights principles of dignity, the right to participation and integration, and individualization.
The Commission believes that Bill 211’s approach to benefits and workers’ compensation is inconsistent with the general intent of this legislation, which is to recognize the worth and contribution of older workers, to provide workers with the dignity of choice, and to ensure that employees are assessed on their skills and abilities and not on their age. The provisions of Bill 211 respecting benefits and workers’ compensation are a form of age discrimination. They send a message that older workers are essentially of lesser worth and value than their younger co-workers, and reinforce negative and ageist stereotypes and assumptions about the abilities and contributions of older workers. They fail to recognize the contribution of older employees to their workplaces, or the importance of work to older workers. These provisions are offensive to dignity, and the Commission believes that they will be vulnerable to challenge under the Charter.
Should the government choose not to amend sections of Bill 211 dealing with benefits and workers’ compensation, the Commission recommends that the legislation include a five-year sunset clause for these provisions. During those five years, the impact of the end of mandatory retirement on benefits schemes and workers’ compensation could be reviewed, with a view to determining the continued appropriateness of these exemptions.
In closing, the Commission once again wishes to congratulate the government on undertaking this important legislation. This is an issue of human dignity, independence and self-determination. It is important that the practice of mandatory retirement be brought to an end: it is also important that this be done in a manner that respects fairness and the principles of human rights. Older workers make a valuable contribution to this province every day. Their contributions, and their rights, must be respected.
 (1992) 16 C.H.R.R. D/255 (S.C.C.)