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As of December 12, 2006, the Ontario Human Rights Code protects all persons aged 18 and over against discrimination in employment on the basis of their age. This means that employers cannot make decisions about hiring, promotion, training opportunities, or termination on the basis of an employee’s age.
Prior to this date, the Code did not prohibit age discrimination in employment against persons aged 65 or older. As a result, policies requiring mandatory retirement at age 65 could not be challenged under the Code. This is now no longer the case. Persons aged 65 and older who believe that they have been discriminated against on the basis of age, including through mandatory retirement policies, may file a complaint of discrimination on the basis of age with the Ontario Human Rights Commission.
This does not mean that employers cannot have retirement programs based on a certain age. Rather, it means that such programs cannot be mandatory, except for judges, masters, and justices of the peace under the Courts of Justice Act, for whom there is a specific exemption under the Code.
In some rare cases, employers may be able to defend mandatory retirement programs on the basis that they are bona fide occupational requirements. In order to meet this test, employers must show that their mandatory retirement program was developed in good faith, is rationally connected to the nature of the work, and that it would be impossible to develop a non-discriminatory program without undue costs or health and safety risks. For example, an employer would be required to show that the objectives of its mandatory retirement program could not be achieved through individual testing and assessment of employees.
Except in circumstances where mandatory retirement can be shown to be a bona fide occupational requirement, collective agreements that contain such provisions will be unenforceable.
It should be noted that the provision of medical, dental, disability and insurance benefits to employees aged 65 and older will remain at the discretion of employers. Exemptions in the Code and the Employment Standards Act and Regulations mean that differential provision of benefits to employees aged 65 and older is not subject to human rights challenges. Similarly, age-based distinctions under the Workplace Safety and Insurance Act are shielded from scrutiny under the Code.