Age Discrimination and Forced Retirement

Currently, there are approximately 1.5 million older persons in Ontario. By the year 2021, Ontario will be home to three million people over the age of 65. Older workers make a valuable contribution to this province every day.

The Ontario Human Rights Code (the “Code“) states that it is public policy in Ontario to recognize the dignity and worth of every person and to provide equal rights and opportunities without discrimination. Employment is central to an individual’s financial health, sense of worth, dignity as well as their satisfaction in feeling able to participate fully in society and be a part of a community.

So, are People Age 65 and Older Subject to Mandatory Retirement?

The answer is no, with limited exceptions.

This article reviews when mandatory retirement is permitted in Ontario. We will review:

  • Some of the protection available under Human rights legislation;
  • Explore how courts evaluate age discrimination cases and cite a couple of tribunal cases where age discrimination was allowed; and
  • Finally, we will offer some pointers for employers and outline the steps employees can take to file a claim.

The History of Mandatory Retirement

Until December 31, 2009, the mandatory retirement age in Canada was 65. At age 65, an employer could terminate your employment for the simple reason of your being 65.

The Federal government prohibited mandatory retirement in 2009. However, the prohibition against mandatory retirement has two exceptions — Supreme Court justices who must retire at age 75 and judges, magistrates and justices of the peace in Provincial courts who must retire between 70 and 75.

Other than these two exceptions, there is no law in Ontario that requires persons to retire at any age. In theory, employees can work until they no longer wish to do so or are incapable of performing their jobs.

What is Age Discrimination and How are Workers Protected?

Imposing an employment decision (such as forced retirement) based solely on age and not on the ability to do the job, is age discrimination under the Code.

In Canada, both federal and provincial human rights law protects Canadians from age discrimination. Ontario`s Human Rights Code protects anyone aged 18 and over against discrimination in employment on the basis of their age.

The Code specifically prohibits mandatory retirement – protecting employees aged 65 or more from being forced to retire, except in cases where the retirement age can be justified as a “bona fide occupational requirement”.

A bona fide occupational requirement is an employment requirement or qualification that is necessary because of the nature of the employment.

One example of bona fide occupational qualifications is mandatory retirement ages for bus drivers and airline pilots for safety reasons.

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 claim of discrimination on the basis of age with the Ontario Human Rights Commission.

The Bona Fide Occupational Requirement Test (BFOR)

The Courts justify discrimination through a test called “Bona Fide Occupational Requirement” (BFOR) which is a standard or criteria that allows an employer to “discriminate” based on an otherwise prohibited ground, if and only if there is a legitimate reason that is connected to the employee’s ability to do the job.

The “test for a BFOR” in the context of age discrimination was discussed in 1982 by the Supreme Court of Canada in Ontario v. Etobicoke. In this case, the complainant, a firefighter, was required to retire at age 60.  The Court set out a two-part test to determine whether a mandatory retirement scheme is justifiable:

  1. Subjective component: the employer must establish that mandatory retirement was imposed honestly, in good faith, and in the belief that the limitation is in the interests of the adequate performance of the work, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the [Human Rights] Code.
  2. Objective component: the employer must establish that the retirement plan is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

What’s the Bottom line?

The bottom line is that it is contrary to law for employers to require employees to retire at a fixed age, whether it be 65, or older or younger, unless the employer can establish to the satisfaction of the court or the Human Rights Commission that the established age is based on a bona fide occupational requirement.  So it is the exception, not the rule, where mandatory requirement is allowed

Employers must be able to provide evidence that the retirement age is justifiable in law. This can be best achieved through the development and communication of a retirement policy that sets out the objective justification for the retirement age. Such policies can later be relied upon in the event of any claim.

Age Discrimination Tribunal Case Review

In Kearns v. Dickson Trucking Ltd. (1988), 10 C.H.R.R. D/5700 (Can. Trib.) a 69-year-old salesman was terminated despite excellent performance. The first time the alleged reason for termination was raised was in the termination letter. The reason given was that there would no longer be a need for his position. However the employee was not declared redundant and the position was filled by a younger person. A case of age discrimination was successfully made out.

In Salter v. Newfoundland (2001), 41 C.H.R.R. D/68 (Nfld. Bd. Inq.) [Hereinafter “Salter”], the tribunal found that the factor of being a pension-eligible employee was considered in making the determination to declare the claimant redundant and that this was synonymous with considering his age. Age discrimination was found in the case.

What these two cases tell us is that an employer cannot avoid the prohibition on mandatory retirement by trying to lay off employees based on redundancy, where the real motive is age related. 

Lessons for Employers:

Employers are bound by three rules in the Code as follows:

  1. They cannot refuse to hire, train or promote people because of their age;
  2. They cannot unfairly target older workers, or other age groups, when it comes to reducing staff or reorganizing; and
  3. They must make sure that the workplace is free from discrimination, is inclusive, and respects and supports the needs of all its workers, including older employees.

In our aging population, age discrimination is common and is on the rise. Claims of age discrimination due to forced retirement are becoming increasingly common and can be costly to employers

Employers can have mandatory retirement programs based on a certain age but these programs must be based on a bona fide occupational requirement for performing the job.

Employers can protect themselves by taking the following steps:

  • Have a retirement age in place which is fixed and communicated clearly to employees, along with the explanation for why this age has been determined to be a necessary qualification for the job.
  • Incorporate the fixed retirement age in a “retirement policy” that sets out the objective and justification for that “fixed retirement age”
  • Take measures to provide a workplace that is free of ageist stereotypes and that provides an environment where older workers are treated as individuals, assessed on their own merits instead of against presumed group characteristics
  • Ensure older workers are subject to the same performance management practices as every other worker
  • Define the eligibility criteria for any voluntary retirement program
  • Share the criteria with all staff, irrespective of age, through a neutral medium such as a written document

Tips for Employees:

If you feel you are experiencing age discrimination at work there are a few things you can do:

  • If you need human rights legal advice or help filing an application with the Human Rights Tribunal of Ontario, contact the Ontario Human Rights Legal Support Centre at: 416-597-4900 or 1-866-625-5179 and speak with a Human Rights lawyer.
  • To file an application with the Human Rights Tribunal of Ontario, visit their website and follow the instructions for how to file an application.
  • To learn more about your rights, responsibilities and options, contact/hire an employment lawyer

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Shifting Balance Between Privacy and Openness in the Tribunal World of Justice

Public access to court proceedings is the normal practice in Court proceedings to the justice system (courts and tribunals) as it ensures justice is administered in a fair manner, in accordance with the principle of freedom of expression, found in the Charter of Rights and Freedoms. However, until recently, openness and transparency did not extend to Ontario’s Tribunals, which make decisions on a wide range of matters

The tribunal system was initially set up with the idea that people could use it as an alternative to the court system to achieve faster, less expensive and easier resolutions. Tribunals, were part of the justice system but operated outside of the principles of openness and transparency.

This article highlights a recent decision of the Superior Court of Justice in Ontario leading case that initiated significant change to the operation of Tribunals in Ontario. We will highlight some emerging issues facing Tribunals in finding the balance between protecting privacy while being accountable to foundational principles of openness and transparency.

Tensions between privacy and openness

In this age of the Internet, the publication of justice system information can lead to serious privacy consequences. As a result, tensions arise between two competing justice values – an open and accessible justice system and the right to privacy.

Questions arise about how to protect the personal information of individuals involved in court and tribunal processes while continuing to foster openness and accountability. It is a difficult balance to reach.

Rules for privacy differ between courts and tribunals

Seeking justice through the criminal court system can be a gruelling, intimidating and de-humanizing process for individuals. This is evidenced through media coverage of high profile cases where credibility goes on trial, private lives go under the microscope and the victims forced to re-live the trauma every day in the courtroom.

The Province’s various administrative tribunals make decisions on a range of issues from landlord and tenant disputes to human rights complaints. Documents and records have in the past typically not been readily accessible. Up until May 2019 the rules of disclosure in the formal court system as well as the principles of transparency and openness were not considered a part of the tribunal system. Access to administrative tribunal records and proceedings was inconsistent — either at the discretion of the respective tribunal or through access-to-information requests under the Freedom of Information and Protection of Privacy Act (FIPPA).

What changed?

In April 2018, the Ontario Superior Court of Justice released its decision in Toronto Star v. AG Ontario, finding that the application of the Freedom of Information and Protection of Privacy Act to administrative tribunals violates the principle of freedom of expression embedded in section 2(b) of the Charter of Rights and Freedoms. The court agreed with the Star that tribunals needed to implement changes to be more open and accessible, transparent and rigorous – necessary to maintain the integrity of the system. Previously, there had been a good deal of secrecy, misinformation, selective disclosure of information, delay, and cost. The result is that the public has had no consistent right and ability to see how decisions are made and on what basis.

The decision in this case significantly transformed how tribunals operate. The outcome had broad ramifications for all judicial tribunals. The court clearly confirmed that tribunals are not simply a function of government, but have adjudicative powers like courts and need to operate openly, like courts.

Bringing Openness into the World of Tribunals

As a response to the decision in the Star case, in May 2019, Tribunals Ontario released a new policy confirming they are now guided by the open court principle and committed to transparency, accountability and accessibility in decision-making and operations.

The open court principle allows the public and media access to tribunal proceedings. It ensures effectiveness of the evidentiary process, encourages fair and transparent decision-making, promotes the integrity of the justice system and informs the public about its operation.

Openness and access to information is fundamental to gaining public confidence in the justice system and in building public understanding of how the administration of justice is maintained.

New challenges for Tribunals

Tribunals now must refine the balance between openness and the privacy concerns of vulnerable people who share sensitive personal information during proceedings. Most decisions and orders of Tribunals Ontario tribunals are available online without charge on CanLII and in some cases on boards’ or tribunals’ websites.

Privacy should never defeat the foundational principles of openness and accountability in tribunal processes, however, where individuals are involved in tribunal processes, their privacy deserves respect and protection.

Maintaining consistency in the balance of privacy and openness

The Canadian Judicial Council plays a leadership role in initiating discussions and debate about the development of electronic access policies. The Council has stipulated that it is important to encourage, to the extent possible, a consistent approach to the use of personal information by courts and administrative tribunals in their decisions and the posting of those decisions on websites.

The CJC’s model protocol on publication of personal information in court decisions, published in 2005, places the onus on judges, not publishers, to limit disclosure of personal information. It provides specific recommendations for protecting the privacy of personal information, characterized as “omitting personal data identifiers which by their very nature are fundamental to an individual’s right to privacy.” It identifies certain information, such as name and date of birth, social insurance number and financial account numbers, as being worthy of protection in written decisions because of the risks associated with disclosing them:

Concluding remarks:

  1. Openness and transparency are fundamental principles of our justice systems – courts and tribunals must respect these principles in their operations.
  2. Withholding public access to records or information for proceedings is unconstitutional and no longer allowed
  3. Privacy and protection of personal information are secondary to the principles of accessibility and transparency
  4. Development of specific electronic policies and promoting wide-spread adoption of them is an important step towards maintaining consistency in the balance of privacy and openness in the justice system.

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.