The Canadian Charter of Rights and Freedoms and Mandatory Retirement of Academic Employees

Under the Canadian Constitution, education is a provincial rather than the federal government's responsibility. In the majority of Canadian universities, colleges, and schools, a mandatory retirement age of sixty-five for men and women is stipulated either by by-laws made under, or collective agreements facilitated by, provincial legislation. A majority of the provinces, in their individual rights or human rights acts/codes, while proscribing discrimination on the ground of, inter alia, age, provides an exception in that between certain ages the provisions against age discrimination do not apply. 1 One of the consequences is that compulsory retirement is not protected under human rights legislation. One of the principal ways the mandatory retirement of academics and others could be challenged was to use the equality provisions of the Canadian Charter of Rights and Freedoms. However, courts lower than the Supreme Court of Canada could not agree whether compulsory retirement at a certain age was, under the equality section of the Charter, discriminatory or not. It was left to the Supreme Court of Canada to decide that important question. This article examines these recent developments. For example, the British Columbia Human Rights Act defines age as between forty-five and sixty-five; and the Ontario Human Rights Code limits the definition of age between eighteen and sixty-five. Thus, discrimination outside these ages is permissible. The Canadian (Federal) Human Rights Act also provides a defense to a complaint of age discrimination of an employee who is forced to retire at the "normal age of retirement." •This article originally appeared in Education and the Law, 4:\, pp. 7-17, 1992, published by the Longman Group UK, Ltd. Reprinted with permission.