Southern Ontario Library Service

Clearinghouse of Professional Information

Bill 211 and Mandatory Retirement: Is Your Library Prepared?

What is Bill 211 about?

The bill to enact the Ending Mandatory Retirement Statute Law Amendment Act, 2005 is still before the Legislature and has not yet been passed. Bill 211 would change the Ontario Human Rights Code which currently allows for discrimination in employment for those 65 and older. The amendment would prohibit employers from forcing employees to retire. A single exception will be when mandatory retirement could be justified on "bona fide occupational requirement" grounds determined under the code.

• The legislation would amend the Human Rights Code and other legislation so as to generally 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 would 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.

When will it take effect?

• The legislation is still before the Legislature and has not been passed.
   
• If it is passed, mandatory retirement would end one year after this legislation has received Royal assent.
   
• This one year transition period will allow workplaces time to adjust to the elimination of mandatory retirement. Some employers would need to reconfigure their employment policies and programs.

What are the issues Bill 211 raises?

Ending mandatory retirement will have an impact on a variety of employment related topics. Some areas are listed below:

OMERS

• Ending mandatory retirement would not have an impact on pension benefits already earned.
   
• Employees could continue membership the plan and accrue benefits past age 65 subject to the contribution cap of
  35 years, after which neither employer nor employee can contribute
   
• OMERS does not have mandatory retirement. Pensions can be postponed to age 69 but must be paid out at 69,
  according to the Income Tax Act.

• Mandatory retirement provisions in existing collective agreements would no longer be enforceable once the proposed legislation comes into effect.
   
• Collective agreements would no longer be permitted to include provisions requiring mandatory retirement, except in those cases in which mandatory retirement would be allowed under the Human Rights Code as a "bona fide occupational requirement".
   
• A "bona fide occupational requirement" is an employment requirement or qualification that is necessary for the performance of essential job duties.
   
• Due to the nature of some jobs, an employee may be required to stop working at a specified age such as 65 or even younger. In such cases, the employer must show that:
   

• Unions and employers would still be able to negotiate voluntary retirement incentives (i.e. early retirement packages).
  

• Currently, under the Employment Standards Act, 2000, employers are prohibited from discriminating on the basis of age in providing benefits to employees aged 18 to 64. This provision would remain in place following the coming-into-force of legislation to end mandatory retirement.

• An employer might opt to continue benefits for workers 65 and over depending on what various insurance carriers are willing to offer.

• Individuals aged 65 and over would continue to be eligible for government benefits such as the Ontario Drug Benefit Plan.
  

• Entitlements under the Workplace Safety and Insurance Act, 1997, would not change.

• Injured workers aged 63 or more at the time of injury would continue to be able to receive loss of earning benefits for up to two years.

• Workers injured at an age less than 63 would cease to receive loss of earning benefits at age 65.
   
• Age-based provisions in the Workplace Safety and Insurance Act, 1997 (WSIA) and its predecessor; the Workers’ Compensation Act (WCA) would be exempt from the prohibition against age discrimination in employment and in the provision of services.

• This would maintain the status quo 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 could receive up to two years of LOE benefits.
  
  

• There is no age limit for deducting EI premiums

• Employers wishing to dismiss employees aged 65 or over would have to provide termination notice or pay-in-lieu unless an employer's mandatory retirement policy could be justified on "bona fide occupational requirement" grounds (see above).
  

• Ending mandatory retirement will not affect the entitlement of individuals in Ontario to access CPP at age 65 (60 for a reduced benefit).

• CPP, Old Age Security and Guaranteed Income Supplement are administered by the federal government. Any changes in eligibility criteria would be a matter for the federal government.

• Information about these programs can be obtained directly from the federal government by calling 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.
  

• The legislation would end mandatory retirement in a fair and balanced way that would not undermine existing retirement rights and benefits yet give workers the right to choose when to retire.
   

• There is nothing being proposed that would have an impact on or prohibit 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 bill would not change these provisions.

See "Ending Mandatory Retirement Checklist for Libraries" below

Ministry of Labour: Ending Mandatory Retirement: What it Means to You

Ministry of Labour: Ending Mandatory Retirement in Ontario

Ministry of Labour: Ending Mandatory Retirement in Ontario: Legislative Changes

On December 12, 2005 SOLS hosted a legislative update workshop which will cover the end to mandatory retirement. The workshop was given by Barbara Humphrey, a management and labour lawyer with Stringer, Brisbane, and Humphrey.

This document has been prepared by Southern Ontario Library Service based on from information excerpted from the Ontario Ministry of Labour website and from the OMERS handbook. It should not be interpreted as an attempt to provide legal information.
October 12, 2005.

For further information contact:

Daryl Novak
Director of Operations
Southern Ontario Library Service
416-961-1669 ext. 5135
800-387-5765 ext. 5135