On December 15, 2011 the federal government gave Royal Assent to the omnibus Bill C-13. Included in that Bill was Part 12, which amended the Canadian Human Rights Act to repeal certain provisions that allowed for mandatory retirement. It also amended the Canada Labour Code to repeal a provision that denied employees the right to severance pay for involuntary termination if they are entitled to a pension.

BC eliminated mandatory retirement in 2008 following other jurisdictions such as Ontario. This recent amendment to the Canadian Human Rights Act brings the federal legislation in line with British Columbia human rights. The abolishment of mandatory retirement in the federal legislation will not take effect until December 2012, which will allow federal employers some lead time to transition. An employer may still implement mandatory retirement but must rely upon proving a bona fide occupational requirement. It is highly unlikely that most employers will be successful, in my view, in implementing such restrictions. The case of the retirement of airline pilots will have to be re-examined in light of this legislative change and it will be interesting to see if safety concerns trump age.

Without a cap on retirement, employers will be faced with a myriad of problems in dealing with older employees. One of the fallouts from the economic downturn beginning in 2008 is that many employees plan to work well beyond what they anticipated would be their retirement age. The inability to mandatorily retire employees makes employers vulnerable to human rights complaints such as discrimination on the basis of age or physical or mental disabilities. It will mean employers will have to manage all employees the same way and employers will not want to just let performance issues slide as an employee reaches what would otherwise have been the mandatory retirement age.