The federal government has made it easier for bankers and others it regulates to work past the usual retirement age of 65, having recently repealed sections of the Canadian Human Rights Act and Canada Labour Code that permit employers to force employees to retire once they reach a certain age, regardless of their ability to do the job.
Although many financial advisors might prefer to head for the exit earlier, those who wish to stay on will be able to do so because of the revised legislation. And as more Canadians live longer, healthier lives, the number of such people opting for later retirement is likely to increase.
Fred Ketchen, director of equity trading with Toronto-based ScotiaMcLeod Inc., has 54 years of experience in the investment business. At age 75, he has no immediate plans to retire — nor is his employer forcing the issue. “One of these days,” says Ketchen, “I’ll decide I’ve done what I want to do, I’ve done enough, and I’ll say, ‘My time is up.’ Money isn’t the only factor in deciding whether you will retire or can retire or whether you want to retire. I love the business I’m in; it’s fascinating, exciting and challenging, and that’s what keeps my mind clear and keeps me active. I don’t mind going out to feed the birds; but, at the same time, I’ve always needed some kind of challenge that will give me a reason to continue to live and breathe.”
Ketchen says that while he’s not in favour of a mandatory retirement age, employers should have the ability to retire elderly employees who can no longer fulfil their duties. “On the other hand,” he adds, “if you wish to stay on and you have something you can continue to contribute, then I think the employer benefits.”
As of this coming December, some 800,000 employees in federally regulated industries, such as banking, transport and communications, will be allowed to continue working beyond the typically mandated ages of 60 or 65.
Many of Canada’s 12,000 federally regulated employers had previously abolished forced retirement at their own initiative. Most provinces also have banned the practice. With the passing of Bill C-13, all Canadian jurisdictions, with the exception of New Brunswick, have outlawed mandatory retirement.
“So many provinces and the federal public service have already eliminated mandatory retirement,” says David Gollub, director of communications at the Canadian Human Rights Commission. “But it’s a really important principle, and it reflects the conditions of today’s society in that people are living longer, they’re healthier at an older age and they have a right to continue working if they feel they are able to and they wish to.”
LAW WILL EXPAND RIGHTS
For the past several years, independent financial advisors and brokers, who are provincially regulated, have been free to continue working beyond normal retirement age. Now, advisors employed by banks will have the same right.
“Historically, the financial services industry, like a lot of industries, had mandatory retirement,” explains Stuart Rudner, a partner with law firm Miller Thomson LLP’s national labour and employment group in Markham, Ont. “Much of the financial services industry is federally regulated — certainly the banks, which is a large percentage right there. To the extent the industry has mandatory retirement now, this [legislation] can have a real impact.”
However, don’t expect the ranks of financial advisors to be filled with geriatrics in the future, says employment lawyer Garry Wise of Wise Law Office in Toronto: “Investment professionals, who — at least, in theory — are somewhat adept at financial planning, tend to set up their lives to enable early retirement. As a class, I’d say they are more likely to be planning for Freedom 55 than the average individual.”
While Canadians now can decide for themselves when to retire, there are exceptions for specific occupations in some provinces.
Most Canadian jurisdictions have a “good faith occupational qualification” or “bona fide occupational requirement” exceptions in their human rights legislation. These exceptions may permit mandatory retirement if it is established that an employee’s age — not necessarily 65 — would significantly affect his or her ability to perform the duties of the job and the employer cannot accommodate the employee without undue hardship. Exceptions also may be provided for under labour standards legislation. Examples of occupations for which a mandatory retirement age could be appropriate include pilot, school-bus driver, firefighter and police officer.
“The provisions of the Canadian Human Rights Act, which provide that a practice will not be considered discriminatory if such practice is based on a bona fide occupational requirement, remain in effect,” notes lawyer Kelly O’Ferrall, who practises in the employment, labour and pension group of Stikeman Elliott LLP in Toronto, in a recent commentary. “Accordingly, certain employers may still be permitted to apply mandatory retirement policies without such policies being viewed as discriminatory.”
Economists have argued that abolishing mandatory retirement will help mitigate labour shortages as the baby boomers age. And the longer people work, the longer they pay income taxes into increasingly cash-strapped government coffers.
The Canadian Human Rights Commission has been calling for the repeal of the mandatory retirement provisions of the Canadian Human Rights Act since 1979. “We’re not born with date stamps saying our fitness for work expires at 65,” David Langtry, acting chief commissioner, notes. “Age discrimination is age discrimination, pure and simple.” IE