FAQ: Mandatory Retirement
Issued: December 8, 2005
Updated: December 19, 2006
When did the new rules against mandatory retirement take effect?
Mandatory retirement ended on December 12, 2006.
Where can I report a specific incident of forced retirement?
If an employee feels that he or she has been discriminated against on the basis of age, the employee can contact the Ontario Human Rights Commission (OHRC) to get more information or to file a complaint.
If you think you have encountered age discrimination, call:
Ontario Human Rights Commission
Telephone: 1-800-387-9080 (in Ontario only)
TTY: (416) 314-6526
www.ohrc.on.ca
Could I be penalized for retiring at or before the age of 65?
The legislation amended the Ontario Human Rights Code and other legislation so as generally to prohibit employers from forcing employees to retire merely because they are 65 or older. It does not prevent employees who want to retire from doing so.
Ending mandatory retirement should not result in people being penalized if they choose to retire at or prior to the age of 65. Rather, older persons will be able to choose for themselves how long they wish to remain in the workforce, based on their own lifestyles and circumstances, so long as they are capable of performing their jobs.
Can I be forced to work past the age of 65?
Ending mandatory retirement should not result in people being penalized if they choose to retire at or prior to the age of 65. Rather, older persons will be able to choose for themselves how long they wish to remain in the workforce, based on their own lifestyles and circumstances, so long as they are capable of performing their jobs.
Is the legislation retroactive; does my employer have to let me return to my job if I was forced to retire at age 65 before the legislation became law?
No, your employer will not have to give you your job back.
Can employers still offer early retirement incentives?
Yes. Employers can continue to use early retirement packages as an incentive to promote voluntary exit from the workplace.
Can an employer terminate or force an employee to retire?
An employer is not able to end an employee's employment merely because that person has reached a certain age, unless being younger than that age could be shown to be a bona fide occupational requirement.
An employer generally may be able to dismiss an older worker for reasons, other than the fact that an employee had reached a certain age, such as for cause or as a result of a business reorganization.
If an employee feels that he or she has been discriminated against on the basis of age, the employee can contact the Ontario Human Rights Commission (OHRC) to get more information or to file a complaint.
If you think you have encountered age discrimination, call:
Ontario Human Rights Commission
Telephone: 1-800-387-9080 (in Ontario only)
TTY: (416) 314-6526
www.ohrc.on.ca
What is a bona fide occupational requirement?
A bona fide occupational requirement is an employment requirement that is discriminatory on certain grounds, including age, but that is allowed under the Ontario Human Rights Code because of the nature of the employment.
The employer must establish:
- that the employer adopted the requirement for a purpose rationally connected to the performance of the job
- that the employer adopted the requirement in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose
- that the requirement is reasonably necessary to the accomplishment of that legitimate work-related purpose. It must be demonstrated that it is impossible to accommodate individual employees without imposing undue hardship on the employer.
All Canadian jurisdictions have bona fide occupational requirement exceptions in their human rights legislation. These exceptions may permit mandatory retirement if the employer can show that the test for a bona fide occupational requirement has been met.
Have an employer's termination obligations changed?
The government has amended the "retirement" exemption in O. Reg.288/01 under the Employment Standards Act (ESA), which stated that the right to notice of termination or termination pay in lieu did not apply to an employee whose employment was terminated after having reached the age of retirement established by the employer.
As of December 12th, 2006, the exemption applies only if the termination would not violate the Human Rights Code, such as where the age of retirement established by the employer was a bona fide occupational requirement.
The government is not planning to change the severance pay exemption that applies in certain cases where an employee receives an actuarially unreduced pension.
For questions on what the employer's ESA obligations are regarding termination or severance pay, contact the Ministry of Labour's ESA call centre at: 416-326-7160 or 1-800-531-5551.
Has an employer's duty to accommodate an individual employee's disability changed?
No. The duty to accommodate obligations under the Code remain the same. Older workers will not be subject to a lower standard of accommodation than other protected groups.
How will this initiative affect collective agreements?
Collective agreements are not exempt from a prohibition on mandatory retirement. As a result, as of December 12th, 2006, mandatory retirement provisions in collective agreements will be unenforceable, and employees in unionized environments cannot be forced to retire at a specific age.
As of December 12th, 2006, what recourse will employees who have been terminated based on their age have?
If an employee feels that he or she has been discriminated against on the basis of age, the employee can contact the Ontario Human Rights Commission (OHRC) to get more information or to file a complaint.
When contacted, the OHRC would explain whether the Ontario Human Rights Code applies to the individual's situation and how the complaint procedure works.
If you think you have encountered age discrimination, call:
Ontario Human Rights Commission
Telephone: 1-800-387-9080 (in Ontario only)
TTY: (416) 314-6526
www.ohrc.on.ca
Employer/Employee Pension Plans
Does ending mandatory retirement affect a person's access or entitlement to private employer pensions?
No, ending mandatory retirement does not affect access or entitlement to employer-sponsored pensions in Ontario.
What does Ontario's Pension Benefits Act (PBA) cover and what does it do?
Employment pension plans for those working in Ontario (in both the public and private sector) are subject to the PBA. The PBA provides minimum standards for pension attributes such as administration, disclosure, membership, retirement and vesting (including the normal retirement age), benefits, contributions and investments. Excluded are people working in Ontario for federally-regulated businesses.
Does the end of mandatory retirement in Ontario affect the Pension Benefits Act (PBA)?
No changes to the PBA are required to bring an end to mandatory retirement. The PBA already permits members to continue plan membership and benefit accrual past the "normal retirement date" under a pension plan, which is most often age 65, subject to any contributions or service caps in the plan itself.
While the PBA requires pension plans to set a "normal retirement date", which cannot be later than one year after turning 65, it does not require that the member retire at age 65 or any other age. The "normal retirement date" is simply the age at which a member becomes legally entitled to receive an actuarially unreduced pension.
Does the end of mandatory retirement in Ontario affect the Canada Pension Plan and Ontarians' eligibility for Canada Pension Plan (CPP) benefits?
The CPP is a federal program. Changes made to Ontario legislation to end mandatory retirement will not affect entitlement under the CPP. No change to CPP was made when other Canadian jurisdictions ended mandatory retirement.
For questions regarding CPP, please contact:
Social Development Canada
By telephone:
English: 1-800-277-9914;
French: 1-800-277-9915;
1-800-255-4786 (if you use a TYY machine) all are toll-free;
http://www.sdc.gc.ca/en/gateways/nav/top_nav/program/isp.shtml
Benefits
How are benefit plans affected?
The status quo with respect to disability plans, life insurance plans, and health benefit plans are maintained. The provision of benefits to workers aged 65 and older will continue to be at the employer's discretion.
Will other policies that currently exist, such as the accepted age of senior citizenship and seniors' discounts, change in the near future because of this legislation?
The legislation ends mandatory retirement in a fair and balanced way that does not undermine existing retirement rights and benefits yet give workers the right to choose when to retire.
There is nothing that impacts or prohibits policies such as the accepted age of senior citizenship and seniors' discounts. The Ontario Human Rights Code specifically allows for programs that provide benefits to groups such as seniors, and the legislation does not change these provisions.
Some programs, such as the Ontario Drug Benefit Program (ODBP) and Guaranteed Annual Income System (GAINS), provide benefits to seniors at age 65. Do the amendments to the Code affect the age at which one receives a benefit from these programs?
No changes to the ODBP and GAINS programs are required as a result of this initiative. The Ontario Human Rights Code specifically allows for programs that provide benefits to groups such as seniors, and the legislation does not change these provisions.
Workplace Safety and Insurance System
Does ending mandatory retirement affect the Workplace Safety and Insurance System?
Age-based provisions in the Workplace Safety and Insurance Act, 1997 (WSIA) and its predecessor, the Workers Compensation Act (WCA), are exempt from the prohibition against age discrimination in employment and in the provision of services.
The status quo is maintained by ceasing loss of earnings (LOE) benefits at age 65 for workers who were less than 63-years-old at the time of injury. Workers aged 63 or more at the time of injury continue to be entitled to receive up to two years of LOE benefits.
Are there increased costs to the Workplace Safety and Insurance System?
Because the status quo has been preserved under the legislation, there will be no change in the nature of the entitlements available to older workers. However, if more Ontarians choose to work past the age of 65, there could be an overall increase in the number of claims filed with the Workplace Safety and Insurance Board.
If I am over age 65 and I get injured at work, does my employer have the obligation to re-employ me when I get well?
The WSIA currently provides that an employer's obligation to re-employ ends at age 65. Because the WSIA is exempt from the prohibition on age discrimination, this provision continues to apply.
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