January 19, 2012
Bill C-13, Keeping Canada’s Economy and Jobs Growing Act, an omnibus piece of legislation aimed at implementing various measures raised in the 2011 Federal Budget, received Royal Assent on December 15, 2011 and will come into force less than one year from now on December 15, 2012.
One of the more significant implications of Bill C-13 in the labour and employment sectors is its amendments to the Canadian Human Rights Act which in effect no longer permit federally regulated employers from enforcing policies or practices which mandate retirement at a predetermined age. Bill C-13 brings federal legislation into line with various provinces on the issue of mandatory retirement, including Ontario, which made similar changes a few years ago.
Having said that, these amendments will not change the provisions of the Canadian Human Rights Act, which provide that a practice will not be considered discriminatory if such practice is based on a bona fide occupational requirement. Where an employer claims that an allegedly discriminatory policy or practice is based upon a bona fide occupational requirement, the employer must meet a legal test which includes demonstrating that the employer accommodated any affected individual(s) to the point of undue hardship. Therefore in certain circumstances, an employer might still be permitted to apply mandatory retirement policies without having them classified as discriminatory where the employer is able to demonstrate that such practice was based on a bona fide occupational requirement.
We therefore advise that federally regulated employers, both unionized and non-unionized, review the terms and provisions of any collective agreements, employment contracts, benefits plans or other employment documentation in place to ensure that they are in compliance with the above-referenced amendments. For example, Bill C-13 would render unenforceable any collective agreement or employment agreement that mandates predetermined retirement ages.
Bill C-13 does not however, prevent the usage of early retirement incentives by employers, as these types of incentives are voluntary and do not attract the same treatment under human rights legislation.
Please feel free to contact us at the number listed below for more information about Bill C-13 and how it may affect you or your organization.