Mandatory Mandatory Retirement for Firefighters

A recent story ran in the Toronto Sun: Province forcing firefighters to retire at 60.

In a nutshell, most fire services across the Province already have mandatory retirement for firefighters engaged in fire suppression duties. Usually, the mandatory retirement age is 60, though it can vary.

Up until a few years ago, Ontario's Human Rights Code did not protect people over 65 from discrimination based on age, so mandatory retirement didn't need to be justified at 65. However, that limit has been removed, and since then mandatory retirement has been a hot issue. The Human Rights Tribunal has considered mandatory retirement for firefighters on a few occasions. There was a significant decision in 2008 in the Espey v. London (City) case, essentially finding that the mandatory retirement provisions were justified on the basis of increased risk of heart disease. The decision was followed in Nearing v. Toronto (City) in 2010.

That doesn't mean that it's a closed question, however. In the Espey case, the door was left open for the prospect that, particularly given advancing medical testing technology, it would likely be reasonable in the foreseeable future to implement a scheme involving individualized testing, or for individuals to seek individual accommodation providing evidence that they personally didn't have a high risk of problems associated with heart disease.

This conclusion is further advanced by a discussion paper released by the Ontario Association of Fire Chiefs at around the same time as the Espey decision, entitled Managing the End of Mandatory Retirement in the Fire Service. Note the overall conclusions beginning at page 42 of the paper:

Seven other provincial and territorial jurisdictions in Canada do not have
a mandatory retirement age. None of them reported a problem with
firefighters staying active past 60 years of age.

Mandatory physical fitness training is recommended, and the report goes on to note:

Appropriate BFOR tests for measuring the physical abilities of
firefighters, at various ages, to perform satisfactorily in the tasks of
suppression, search and rescue do exist and are available for use in
Ontario.

In other words, the Espey case is not a perpetually bullet-proof endorsement of a mandatory retirement age for firefighters.

Also of interest in this debate is a recent decision released by the Federal Court involving mandatory retirement for pilots, in Air Canada Pilots Association v. Kelly, where the Court rejected mandatory retirement under the circumstances.

The theory I've heard, which seems sensible, is that the municipalities don't care about the mandatory retirement age. By the time firefighters reach 60, they are at least Captains, not carrying out extensive heavy physical duties. However, a mandatory retirement age of 60 allows for more upward movement of younger firefighters, which makes it attractive to the Unions. But the relationship between Unions and firefighters is excluded from the jurisdiction of the Ontario Labour Relations Board, meaning that the usual recourse a person might have against unfair treatment by the union doesn't exist for firefighters.

With the Espey case being potentially open to challenge, it seems strange that the Ontario legislature is looking to implement legislation which requires all fire services to have a mandatory retirement age. Such a law will likely have to withstand some close Charter scrutiny.

*****

This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.