The BC Court of Appeal has issued an important decision on mandatory retirement in the public sector that could make cases of this kind more complicated and expensive in the future. In Greater Vancouver Regional District Employees’ Union v. GVRD, the court dismissed an appeal from an arbitration award with one of three judges dissenting. The majority held that earlier decisions of the Supreme Court of Canada did not establish that every mandatory retirement policy in the public sector is justified under the Charter of Rights and Freedoms. In each case, an employer may be called upon to bring evidence of justification failing which the policy may be found to be unconstitutional. Prowse, J.A. urged a reconsideration of policy upon the Supreme Court of Canada:
“In the event that McKinney is found to stand for the proposition that all mandatory retirement policies in the public sector which are not in contravention of provincial human rights legislation are, therefore, justified under s. 1 of the Charter, I would urge the Supreme Court of Canada to reconsider this issue. Eleven years have now passed since McKinney was decided. The demographics of the workplace have changed considerably, not only with respect to the university community, but also in the workplace at large. At least two other countries, Australia and New Zealand have abolished mandatory retirement. Recent studies have been done on the effect of abolishing mandatory retirement in Canada and elsewhere. (See, for example, The Report of the Canadian Human Rights Act Review Panel (Ottawa: Canadian Human Rights Act Review Panel, June 2000, and, Ontario Human Rights Commission, Time for Action: Advancing Human Rights for Older Ontarians (Toronto: Queen’s Printer for Ontario, 28 June 2001).) The extent to which mandatory retirement policies impact on other equality rights, and on the mobility of the workforce, have become prominent social issues. The social and legislative facts now available may well cast doubt on the extent to which the courts should defer to legislative decisions made over a decade ago. The issue is certainly one of national importance.”
(Click here for link to decision)