April 19, 2016

Mandatory Retirement and Employment: Must I Retire At 65?

There is no law in Canada that says you must retire at the age of 65. Why? Because courts and Human Rights Tribunals have adopted the position that to permit employers to impose mandatory retirement, which is solely based on age, is discrimination.

Pursuant to the Alberta Human Rights Act, it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation. These are known as the enumerated grounds of discrimination. Age explicitly being one of them. As such, the Alberta Human Rights Act further states that no employer shall refuse to employ or refuse to continue to employee any person based on age or any other enumerated ground. Mandatory retirement at the age of 65 is considered to be a refusal to employ an employee based on age. Age discrimination may also apply to other aspects of ones conditions of employment such as, but not limited to, salary, duties, training or opportunity for promotions.

However, as is the case with many legal issues, there is an exception to this rule. The Alberta Human Rights Act states that a breach of one’s human rights shall be deemed not to have occurred if the breach was reasonable and justifiable in the circumstances. Courts have found that mandatory retirement is justifiable if mandatory retirement is based on a bona fide occupational requirement. The bona fide occupational requirement test is a threefold test, which is generally justified in positions that are safety sensitive, such as firefighters, police officers and bus drivers.

Whether or not a mandatory retirement policy is discriminatory or justified (from either the perspective of an employee or employer), must be determined on a case by case basis taking into account the merits and unique circumstances of each independent matter.

For assistance or additional information on mandatory retirement and its applicability to your specific circumstances, please contact Joshua D. Sutherland and Walsh LLP directly at 403-267-8400, via our toll free number 800-304-3574, or by e-mail (ac.walhslaw@dnalrehtusj).