On June 26, 2015, the British Columbia Human Rights Tribunal dismissed a complaint regarding mandatory retirement in Yaremy v. City of Vancouver and another, 2015 BCHRT 98. The decision allows an employer to enforce mandatory retirement of employees when it is tied to a bona fide retirement, pension, or superannuation plan. This decision also signifies that benefits can be denied based on age.
John Yaremy was a firefighter employed by the City of Vancouver (City) and a member of the Vancouver Fire Fighters’ Union, Local 18 (Union). When he was hired, Mr. Yaremy was mandatorily enrolled in a pension plan. The rules in the pension plan listed age 60 as the “normal retirement age” for firefighters. The collective agreement between the City and the Union referenced the pension plan and required all firefighters to retire at age 60. Mr. Yaremy’s employment was terminated by the City when he turned 60 as retirement was mandatory. At the time, Mr. Yaremy was physically disabled, on medical leave, and unable to work.
Mr. Yaremy argued that the City was discriminating against him on the basis of age and physical disability, discrimination that is prohibited under the BC Human Rights Code.
The City and the Union argued that the requirement for mandatory retirement was inextricably linked to the operation of a bona fide retirement, pension, or superannuation plan. In the Code, discrimination based on age is allowed when it relates to a bona fide retirement, pension, or superannuation plan.
The Tribunal agreed with the City and the Union. It held that the collective agreement worked in conjunction with the pension plan and that mandatory retirement was a closely intertwined component of the pension and retirement package for firefighters. Due to this finding and a separate finding that Mr. Yaremy was terminated solely for his age (and not his disability), Mr. Yaremy’s complaint was dismissed for having no reasonable likelihood of success.
Implications for Employers
Mandatory retirement in British Columbia is now lawful for many employers, as there are now exceptions for bona fide retirement, pension, or superannuation plans.
An employer’s plan may be a bona fide retirement, pension, or superannuation plan if the following apply:
- The overall plan is legitimate, adopted in good faith, and not created for the purpose of defeating protected rights.
- The plan itself stipulates a retirement age and is funded or otherwise structured based on that age. The retirement age can differ depending on the occupational requirements (e.g., setting a lower retirement age for a job that is highly physical in nature). However, the actuarial basis for the plan must have been developed based on a specific age and that age must have been set in good faith (i.e. not to defeat the human rights prohibition on age discrimination).
- The express terms and conditions of employment (i.e., as set out in a collective agreement or employment contract) make reference to the plan.
- In the case of a pension plan, that plan is registered under applicable provincial and federal legislation, and the requirements to maintain the plan (e.g., documents and registration information) are up to date.
- Kristen Woo (Summer Student)