curious george said:
On the other end of the spectrum, why are you not allowed to work past 60? How did they come up with this number? The 60 year olds of today are much "younger" than the 60 years olds a generation or two ago. Your ability to do the job should not be based solely on a number. (I believe there is an army doctor in the US who recently deployed in his 70's or 80's. He was valued for his immense experience and expertise). Has anybody challenged this with Human Rights Tribunal or other appropriate avenue?
The mandatory retirement age of 60 years is relatively new for the CF. It used to be 55 and not that long ago was even younger depending on rank and terms of service.
You may be referring to Colonel William Bernard, a physician and surgeon in his late 70s (who is retired from his civilian anesthesiology practice but still licensed to practice medicine) who is in the “Retired Reserve” and volunteered several times for deployment. There are a few other
septogenarians old coot doctors who have done the same. Actually, in the US military it is not unheard of for really old doctors (and other medical professionals) to come back on active duty. You won’t find the same acceptance for old volunteers in other military occupations. There is a difference between Canada and the USA in the status of military retirees. Up here, we contribute to a pension plan and, once retired and in receipt of superannuation, have no obligation for further service. In the US military, they do not contribute to a pension and technically do not receive a pension when they retire but “retired pay” and belong to the “retired reserve” with the obligation for recall to active duty if required and are fit to serve. During the Gulf War (the one back in 1991, Desert Storm), the senior US medical officer (USAF Reserve) that we worked with was in his late 60s. He had first joined up during WW2. He made our DCO (a physician who had rejoined the Reg Force after he turned 50) look positively young (actually not, “Swiney Al” never looked young).
During Desert Storm, the US Army was short of Physician Assistants to (primarily) man the BASs of their deployed units. The way they solved this shortage was to involuntarily recall to active duty a large number (couple of hundred?) of PAs from the retired reserve. I ran across one of these fellows who was transiting through our ASF as a patient. Other than his medical condition, he was typical of the activated PAs. He had been out of the Army a long time (hadn’t worn a uniform for over a decade). He was well established in his civilian job/practice as a PA. He had been sent to Saudi Arabia and into the desert within a couple of weeks of activation and at 62 years old he was maybe a little older than the average but not by much and he wasn’t the oldest. The reason he was being evacuated (before the start of the ground war) was that he had an MI.
And yes, there have been human rights challenges to the CF mandatory retirement policies. Take note of this section of the Canadian Human Rights Act.
http://laws-lois.justice.gc.ca/eng/acts/H-6/page-5.html#docCont
Exceptions
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
(b) employment of an individual is refused or terminated because that individual has not reached the minimum age, or has reached the maximum age, that applies to that employment by law or under regulations, which may be made by the Governor in Council for the purposes of this paragraph;
(c) an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;
One of the notable CHRT decisions is Martin et al v. DND/CF. It may be an interesting read for you if you are genuinely interested in the reasons that the CF presented to support this policy. This ruling caught my eye because I am familiar with some of the plaintiffs, most particularly MWO (Ret’d) Ernie Grossek who was at 4CMBG/CFE HQ when I was in Germany (during same time frame in early 1990s when this complaint was made) and Col (Ret’d) Bob (the Slob) Slavik.
http://chrt-tcdp.gc.ca/aspinc/search/vhtml-eng.asp?doid=156&lg=_e&isruling=0&arch=true
. . . . . . .
The essence of the complaints, is that the Complainants were
compulsorily retired from the CAF upon attaining a specified age and for
this reason only. The Respondents did not seriously dispute that this
constitutes a discriminatory practice under Sections 7 & 10 of the CHRA.
[b/Rather, the Respondents sought to justify the CRA policies as being a "bona
fide occupational requirement" ("BFOR") within S.15(a) of the CHRA, or as
"regulations" which come within s.15(b) of the CHRA. [/b]
. . . . . . .
In making the s. 15 (b) argument, counsel for the
Respondents had some difficulty attributing a meaning to the words "for the
Purposes of this paragraph" found at the end of paragraph 15(b). Counsel
admitted that these words are superfluous and attributed the wording of
the paragraph to clumsy drafting. In her view, the obvious legislative
Q.R. & 0. 15.17 and 15.31 contain no reference to the CHRA.
This is not surprising because they were passed prior to the enactment of
the CHRA. Thus, even in the absence of express wording, it is difficult to
accept the argument that they are regulations made for the purposes of
s.15(b) of the CHRA.
The decision was in favour of the plaintiffs with the CF’s argument of a BFOR not standing up to scrutiny and as noted the “regulations” argument also not accepted. The government sought judicial review of the decision, which upheld the tribunal opinion and also had its appeal rejected. Since the major point was that the regulations about mandatory retirement were not made specifically for the purpose of the CHRA, it did trigger a change. The CHRT decision was made in August 1992, in September 1992 the following statement was first added to QR&O 15.17 and 15.31.
(11) This article is a regulation made for the purposes of paragraph 15(1)(b) of the Canadian Human Rights Act.
