Canadian Human Rights Tribunal
Canadian Human Rights Tribunal decision may signal death knell for mandatory retirement in federal sector
On July 1, 2009, Nova Scotia amended its human rights legislation in order to prohibit mandatory retirement in most cases. This means that every province and territory in Canada has now either prohibited mandatory retirement outright, or only allows it if it is based on bona fide retirement or pension plans, or a bona fide occupational requirement.
The same cannot be said for federally regulated employers in Canada.
Section 15(1)(c) of the Canadian Human Rights Act (the "Act") still permits employers in the federal sector to impose mandatory retirement policies on their employees if they have reached "the normal age of retirement for employees working in positions similar to the position of that individual".
Sections 15(1)(a) and 15(2) of the Act provide that mandatory retirement policies are not discriminatory if they are based on a bona fide occupational requirement. read more »
On this point, the Canadian Human Rights Tribunal stated:
...I cannot emphasize enough that "failure to accommodate" is neither a prohibited ground of discrimination nor a discriminatory practise under the CHRA. There is no free-standing right to accommodation under the CHRA.
The duty to accommodate only arises in the context of s. 15(2) of the CHRA and only when a respondent raises a bona fide justification by way of defense to an allegation of discrimination. For Mr. Moore to show a prima facie case, he must rely on something other that the failure of CPC to accommodate him (paras. 86-87)
The employee had 13 years of service and worked in a Bell call centre.
She went on maternity leave. Her baby was born with a heart defect. The physician recommended that she breastfeed as long as possible in order to strengthen the baby's immune system. Further to this, the employee developed a breastfeeding schedule that required a feeding at 4:30 pm every day.
The employee's usual shift was from 8 am to 4 pm, Monday to Friday. On rare occasions she worked from 8:15 to 4:15. read more »
Published in Lawson Lundell LLP Labour and Employment Newsletter (Winter 2005)
In a recent decision1, the Federal Court of Canada - Trial Division (the "Court") ruled that an employer is not required to accommodate an employee with excessive non-culpable or "innocent" absences by simply tolerating the absences.
The decision involved a review of two Canadian Human Rights Tribunal ("CHRT") decisions that were handed down in early 2003 concerning bus drivers employed by the Ottawa-Carleton Regional Transit Commission ("OC-Transpo").
One employee had been employed by OC-Transpo for nearly nine years. She had two types of diagnosed illness: (1) reoccurring migraine headaches that caused her to miss 57 full days and 11 partial days over the course of her employment; and (2) several transitory illnesses - gallbladder problems, broken ankle, bronchitis, etc. - that caused her to miss an additional 365 full days and 24 partial days over the course of her employment. read more »
The Report of the Canadian Human Rights Act Review Panel was released in June 2000.
The four-person panel was chaired by Gerard La Forest, who retired from the Supreme Court of Canada in 1997. It was established in April 1999 by federal Minister of Justice Anne McLellan with a mandate to: read more »