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Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities



Tuesday, February 15, 2011

[Recorded by Electronic Apparatus]



    I'd like to call this meeting to order. This is meeting number 44 of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities.
    We have witnesses with us for the first 45 minutes. After that 45 minutes we will have a new set of witnesses, and following that we will be looking at the bill clause by clause. So we do have a very aggressive agenda today.
    We are very happy to have with us today Seamus Cox from the New Brunswick Human Rights Commission. From the Canadian Association of Retired Persons, we have Susan Eng, vice-president, and Michael Nicin, government relations. As well we have a representative from the Canadian Chamber of Commerce, Susanna Cluff-Clyburne, who is the director of parliamentary relations. Thank you all for being here.
    I would ask each one of the organizations to take five minutes for their presentation. I apologize for the short amount of time, but that will give us time for questions and answers.
    I will begin with the Chamber of Commerce. Would you please begin with your five-minute presentation?
    Thank you.
     Absolutely, and thank you for the opportunity to be here today.
    The Canadian Chamber, as you probably know, represents businesses of every size in every region of the country. We count amongst our members several federally regulated employers in the communications, financial services, and transportation sectors.
    Last fall the Canadian Chamber of Commerce released a policy paper entitled “Canada's Demographic Crunch: Can Underrepresented Workers Save Us?” In that paper we called upon the federal government to amend the Canadian Human Rights Act to eliminate mandatory retirement for persons aged 65 and older. This recommendation recognizes the reality that Canada is undergoing a major demographic shift. Canada's population and its workforce are aging. Last year nearly all growth in the labour force stemmed from immigration. Some business sectors indicate they are facing shortages of the skilled people they need to remain competitive and to grow. Canada's businesses are concerned that these shortages will continue as more baby boomers reach traditional retirement age.
    What must Canada do to ensure it has sufficient skilled people to replenish its workforce? While many look, quite rightly, to immigration as an answer, we need to look at the potential of our homegrown human resources as well. We need to provide more opportunities for those Canadians who are underrepresented in our workforce. These include older workers, our aboriginal peoples, and peoples with disabilities.
    In light of our shrinking workforce, arbitrarily fixing a retirement age is unwise. The mandatory retirement age of 65 hearkens from another era. Things have changed. People live longer, healthier lives, and many wish and/or need to work past what has been considered the traditional retirement age. Older workers have a wealth of skills, knowledge, and experience, which are tremendous assets for a business in a country facing a labour supply crunch in their day-to-day operations and in the transferring of human capital and knowledge to younger workers.
    Progress has been made to encourage older workers to stay in the labour force, and efforts must continue to remove any stigmas and institutional deterrents to the continued participation of older Canadians in the workforce. Most federally regulated employers no longer impose a mandatory retirement age, and the provinces and territories have implemented legislation to eliminate it. We urge the federal government to follow suit.
    That said, just as arbitrarily setting a mandatory retirement age is outdated and economically unwise, arbitrarily allowing anyone at any age to perform any occupation is equally so. Therefore, in our recommendation to the federal government in last fall's report, we also said that employers need to have the flexibility to maintain occupational requirements based on age that exist for safety reasons. Federally regulated employers provide essential services to Canadians. Their needs and those of their employees are very different. Therefore, the laws and regulations governing the relationships need to be flexible enough to protect their respective rights and serve Canadians safely and effectively.
    We recommend that Bill C-481 be amended to explicitly permit federally regulated employers to apply mandatory retirement ages in specific occupations associated with a risk to the safety of the public and/or other workers. As you have heard from other witnesses, many pension, benefit, and insurance plans are based upon the traditional retirement age of 65. We also recommend that Bill C-481 be amended to explicitly allow employers to continue to treat employees differently based on their age for pension and benefit plans. This would recognize the potential for the added cost to employers of providing these benefits to older workers and is consistent with the approach taken by the provinces and territories. Bill C-481 also needs to be amended to explicitly state that where an employee is involuntarily terminated due to safety concerns and is eligible to receive a pension, no severance is payable. The change Bill C-481 proposes making to the Canada Labour Code leaves this open to interpretation.
    Employers will need time to modify their business practices to accommodate any changes resulting from the passage of Bill C-481. Therefore, should Bill C-481 become law, we propose a coming into force date of no less than two years following royal assent.
    In conclusion, the federally regulated members of the Canadian Chamber of Commerce agree that the time has come to eliminate mandatory retirement. However, any legislative changes and supporting regulations must explicitly enable these employers to manage their businesses and employee relationships in a manner that ensures that they can continue to serve Canadians safely and efficiently.


    Thank you.
    Thank you very much for that presentation.
    We will now go to the Canadian Association of Retired Persons.
    Ms. Eng, please go ahead.
    Thank you for having me here today.
    CARP is a national, non-profit, non-partisan organization with 300,000 members across the country in 41 chapters. We advocate for social change that will improve the quality of life for all of us as we age. Our advocacy covers financial and retirement security; equitable access to health care; and such human rights issues as freedom from elder abuse, ageism in the media, and age discrimination, especially in the workplace.
    Consequently, we appreciate the opportunity to appear before the committee to voice our support for Bill C-481 and to encourage Parliament, through this committee, to expedite passage of the bill.
    Bill C-481 will remove paragraph 15(1)(c) from the Canadian Human Rights Act. We believe this provision amounts to legislated age discrimination, and the courts have found it to be contrary to the Canadian Charter of Rights and Freedoms. The Federal Court has said that paragraph 15(1)(c) has “the effect of perpetuating the group disadvantage and prejudice faced by older workers” by promoting “the stereotypical view that older workers are less capable, or are less deserving of recognition or value as human beings or as members of Canadian society”.
    CARP has pursued the elimination of mandatory retirement over the years and has worked with various provincial jurisdictions to repeal the equivalent provision in their own human rights codes. At this point, every Canadian jurisdiction has so eliminated--except for the federal jurisdiction. In the federal jurisdiction, an estimated 840,000 employees across the country are still subject to mandatory retirement because of the operation of paragraph 15(1)(c). The federal government is the last jurisdiction in Canada to hold onto legislated age discrimination.
    As a public interest advocacy organization, we try to ensure that we fairly represent the views of our membership. We do our best to keep them up to date on various developments so that their views are in fact well-informed. We communicate with our members through our magazine, through the website, and increasingly through an e-newsletter that reaches some 85,000 opt-in subscribers. We've kept them up to date on the progress of a number of issues, including this one and the Air Canada pilots case.
    Even more instructive is the polling that we're able to conduct. We seldom get fewer than 1,500 responses, and generally get 3,000 to 5,000 responses. I've provided you with the results of two recent polls. You will have that in your materials. One result we issued just this Friday, and I'll give you the conclusions of that poll.
    This is what the CARP members wanted this committee to hear from them. CARP members are solidly in favour of passing Bill C-481 immediately. They see it as legislated workplace discrimination against Canadians who must work. Fully one half say that they will not vote for their own party if it blocks passage of the bill, and the vast majority say that no Canadians should have to go through the experience of the recently reinstated Air Canada pilots.
    Add to that the fact that older Canadians are the most engaged and consistent voters--70% of those over age 60 vote regularly--and you have a message from your most loyal but vigilant constituents that should not be ignored.
    We've called on the federal government over the years to remove paragraph 15(1)(c). Most recently, CARP's call to the parties to act in the wake of the August 2009 decision in Vilven and Kelly supports the introduction of Bill C-481.
    In the absence of parliamentary action, the courts have ruled that the section violates the Canadian Charter of Rights and Freedoms, as it denies equal protection and equal benefit of the law to workers over their normal retirement age. As a result of these decisions, and after seven years of costly litigation, two airline pilots were recently reinstated with full seniority. They appeared before you last week.
    In coming to these conclusions, the courts have done what Parliament has failed to do, and that is to invalidate legislated age discrimination. However, because the rulings apply only to the individuals before the courts, it means that any other pilot, or indeed any other Canadian, has to go through a similarly arduous process in order to assert his or her right to keep working.
    The courts have also made it clear that legislated age discrimination has no place in today's society. I've included some quotes on that in the material here.
    The recently released Federal Court decision from just two weeks ago, February 3, unreservedly found that the section was not reasonably justified “in a free and democratic society” under section 1 of the charter. Thus, it is reasonable to expect that each of the nearly 200 cases now before the Canadian Human Rights Tribunal will be decided in the same manner. However, because of the failure of Parliament to act, you will waste many more millions of tax dollars in order to see that these people will go through the same process over again.


     If my time is up, I will conclude that this is an important time for Parliament to act. It's a time to show some leadership.
    Thank you very much.
    Thank you very much.
    We'll now go to Mr. Cox, please, for five minutes.
    Hi there. I've been asked here today to discuss the pension plan exception found in New Brunswick's Human Rights Act.
    What's unique about New Brunswick's Human Rights Act is that it specifically allows for the termination of employment in relation to a valid pension plan. Unlike the other exceptions to discrimination found in the act, there is no requirement that the termination of employment be justified or reasonably necessary or that less restrictive options be explored. As long as the pension plan is a valid plan and is not a sham, it's permissible to terminate the employee at whatever age the plan calls for.
    One of the issues we have with this is that the particular circumstances of the employee are not taken into consideration. Although this may work for an employee who has a fully funded pension or who has been employed with the company for the duration of his or her career, if the person has entered the workforce late or doesn't have a fully funded pension, the particular circumstances of that individual are not taken into consideration.
    Many of the other provinces and territories have pension plan exceptions in their respective acts that allow for age differentiation with regard to the operation of the terms and conditions of the pension plan. But they do not specify that termination of employment is permitted. So it's generally considered that these exceptions would not allow for mandatory retirement in relation to a pension plan.
    You have New Brunswick that specifically permits it and most of the other jurisdictions that don't. But there are a few other exceptions I thought I should bring to your attention, in case you weren't clear.
    In Quebec, for instance, the charter allows for exclusion on the basis of age if the plan administrator can establish that there is financial risk to the plan based on actuarial data.
    Just to review, in Quebec, if actuarial risk can be established, you can exclude somebody from employment. In Manitoba, the Pension Benefits Act specifically prohibits mandatory retirement. The Human Rights Code defers to the Pension Benefits Act, and it specifically prohibits it.
     In Ontario, surprisingly, the Human Rights Code defers to the Employment Standards Act, in which age is still defined as being between 18 and 65. I would say that the commission recognizes that this is a problem. They've been recommending that the legislation be amended. But it appears that there's very little protection from mandatory retirement in relation to a pension plan in Ontario right now.
    In conclusion, I think it would be fair to say that in Ontario and New Brunswick, termination of employment is permissible in relation to a pension plan. In Manitoba, it's definitely prohibited. In Quebec, it's allowed only if there's financial risk to the pension plan. And in the rest of the jurisdictions, it's likely not allowed.
    Thank you.


    Thank you very much.
    We will have time for one round of questions, a six-minute round. If you'd like to share it with one of your colleagues, you can. If not, take the whole round. Just as a reminder, the six minutes includes the questions and the answers. If you want to keep an eye on me, I'll let you know where we are with the time.
    We'll begin with Madam Folco, for six minutes, please.
    Thank you very much, Madam Chair.
    I'd like to ask the question to Madam Eng to begin with and to anyone else who wishes to add to her answer. It has to do with our famous paragraph 15(1)(c).
     Paragraph 15(1)(c) turns out to be a huge problem. My assistant sent me an e-mail this morning about an article that appeared in one of the English language newspapers, which tells me, and I'll quote here, that Judge Mactavish declared that the previous court had “erred in finding Air Canada had failed to demonstrate that age is a bona fide occupational requirement for its pilots”.
    The argument of Air Canada at the time was that it was nearly “impossible to schedule its pilots within International Civil Aviation Organization rules”.
    So I wonder, Madam Eng, if you would like to address that in terms of what this bill intends to do with paragraph 15(1)(c), which is actually to completely replace it.
     The news article placed in the papers today indicates the long and torturous process that this whole issue has taken through the courts. And it's not finished. That is why we are asking Parliament to act as quickly as possible.
    In actual fact that's a misappreciation of the actual finding of the court. The court was unequivocal, saying that paragraph 15(1)(c) in fact offended the charter and it was not saved by section 1 of the act.
    There was a technicality in relation to something that applies only to pilots, and that is a little more technical than I'm in a position to explain. It has to do with accommodating and scheduling pilots of a given age; they have to be different ages in the cockpit. But that is not enough to undermine the essential holding of the court, which is that this section on its face not only offends the charter but it's not saved by section 1 of the charter.
    Of course it is anticipated that Air Canada and the pilots union will appeal this to the next level of court. That is why we implore this committee and Parliament to move as quickly as possible to finally, once and for all, end legislated age discrimination.
    From what I understand, we've had two court decisions, plus the decision of the Human Rights Tribunal, that have all said the same thing, in the sense that paragraph 15(1)(c) is not acceptable according to the charter. In fact, as you know, this is the reason this bill was brought forward by me.
    Madam Cluff-Clyburne, would you like to comment on that?
    We're not challenging the elimination of mandatory retirement from the Canadian Human Rights Act. All we're asking for on behalf of our members is that these companies that do provide critical services to Canadians have measures in place where they can manage their businesses, whether it's a question of the safety of--


    You're not challenging it, Madam Cluff-Clyburne, but my impression is you're giving it a slow death. Either you're discriminating or you're not discriminating. It can't be black, white, and café au lait. It has to be one or the other.
    This bill, C-481, says there is discrimination. If there is discrimination against one group, then all the people within that group have to be affected by Bill C-481. This is where I take exception to the amendments you proposed to this committee.
    It seems to me, and I'm not an expert, that when you talk about discrimination you must include all the members within a particular group who have identical characteristics. From the time you withdraw one group and say, well, they're not being discriminated against even though they're under the same exceptions, then you're not respecting what Bill C-481 is trying to put forward.
    We'll have to agree to disagree on that, then, because our members believe they need to have measures in place to protect the health and safety of their employees and of Canadians.
    Madam Eng.
    Actually the pilots case is instructive, in that the competency and their safety were tested on a regular basis. They absolutely guarantee that every pilot who's flying the plane is safe and competent to fly that plane. That's a very good example of the kind of workplace testing that is possible. They test all the pilots the same way. To distinguish on the basis of age instead of actual competence I think is wrong. There's no need for it.
    While the chamber is right to worry about safety concerns, there are ways of dealing with that without using age as the criteria.
    Thank you.
    You have 30 seconds.
    Never mind.
    All right. We'll then go to Mr. Lessard, please.


    Thank you, Madam Chair.
    I want to thank the witnesses for being here this morning to give their statements.
    In response to Ms. Cluff-Clyburne's concerns, I would say that as soon as the age limit is removed, the workers who will be laid off will be those who no longer meet the regular requirements of the job. She would agree, I'm sure, that a 40 or 50 year old could also cease to meet the requirements. It is up to the employer, who will have to justify the decision.
    Ms. Cluff-Clyburne, my question is for you, and it has two parts.
    First, you raised a question that came up last week but went unanswered because we ran out of time. You said that once the retirement age is taken out of the equation, employers no longer have to provide any compensation to retiring workers. What kind of compensation did you mean? Enhanced pension benefits because the person worked longer? Were you referring to compensation related to employee benefits? What type of compensation were you referring to?


    What we're referring to is if there is a case where an employee is found not to be able to perform the particular job they are to perform for safety reasons and they are eligible for a pension, then there should be no severance payable at that time. But it would only be in the case where the employee is already pension eligible.


    Is that not just another form of discrimination based on age? For example, if your employer gives you a two-week termination notice, minimum wage legislation normally entitles you to receive two weeks' pay. That is the most common type of severance.
    Is that what you mean?


    No. I'm referring to where it's been demonstrated by the employer, through whatever means the particular employer employs, that the employee is no longer able to perform that particular function in a safe manner and the person is already eligible for a pension; then the person would not be eligible for severance on top of their pension. Whatever arrangements there are for severance I would think would stay in place. It's just the question of whether or not they would be eligible for their pension as well as severance pay.



    I have worked in labour relations for more than 30 years, and I still do not know what type of compensation you mean. If a person receives a separation notice, regardless of whether they are 35 or 68 years of age, they are entitled to the same benefits, I would think. If I am mistaken, please explain further.
    The other part of my question has to do with the deadline for implementing the bill, once it receives royal assent. You suggest two years. We will have to make a decision on that. I think we should indeed set a deadline. Last week, we heard one year.
    What specific measures will the employer or the government—but the employer, especially, since that is who we are talking about—have to take after the bill receives royal assent and before it comes into force? I do not get the sense that there are too many.


    I can't speak on behalf of individual companies. Since I was asked to appear last week, I have spoken with several of our members who are in the federally regulated sector, and they have said that in order to make the adjustments necessary to their benefits plans, to their business operations, to accommodate the elimination of the mandatory retirement age, they would like to have a minimum of two years to be able to do that.
    If I recall correctly, I believe last week's testimony said a year to 18 months, if I'm not mistaken. So on their behalf, we're asking for a minimum of two years.


    Could you be a bit more specific? A 65 year old who works until the age of 67, for example, is already employed, already in the system. So no new measures are applicable to that person. The person just continues to receive what they have, since they are already on the job. The measures are already being implemented. The only issue is when they stop being implemented. Actually, they will stop when the person decides to leave their job or when the employer determines they can no longer fulfill their duties.
    I am just trying to understand what measures you are referring to, because we do not know what you mean.


    Again, I'm not in a position to speak on behalf of individual companies because every company is different. They are asking for some time to be able to implement any changes that may need to be made in their businesses before the legislation comes into force.
    Thank you very much, Mr. Lessard.
    We'll go to Mr. Martin, please.
     I want to thank you all very much for coming today.
    This is actually a very important piece of public policy and business that we do here. I have to say that I'm challenged by it in the same way that the chamber is, in that most of the conversation I've had with seniors in my riding is not so much about mandatory retirement as about making sure they have a decent pension at the end of the day that would allow them to retire with some dignity. I understand the argument that is made that if you allow them to work longer, maybe they could build up the credits they need. But this also speaks to the often tongue-in-cheek comment that what we want to create here is cradle-to-the-grave McJobs for everybody. That's certainly not the workplace whose development I'd want to be supporting.
     I have to say honestly that I have some concerns as well about how this might impact Canada Pension, for example. It wasn't that long ago that there was a fear that the Liberal government of the day was going to move the retirement age to 67 for old age security, which would be quite detrimental to many hundreds of thousands of seniors who retire and count on that old age security to put them into a category that...well, it doesn't get them out of poverty anymore, but it certainly lifts them a little bit. So it's interesting for me that the chamber has done the kind of work you have done over the last few days to bring forward what I think are amendments that we should consider seriously here.
    Have you talked at all, Susanna, with any of the labour groups that might be present in your area concerning some of this? It seems to me, from the conversations I've had with some of them—and we will have the pilots' association before us later this morning—that there are similar issues there. We need to look at the impact of this on retirement plans, how they mesh or don't mesh, and how this interfaces with Canada Pension and what that could mean going forward, and what it would signal to the government that they might consider doing that would impact, then, on the hundreds of thousands of people out there who would love to retire, if they only had a pension plan that would allow them to do so.


    No, I have not spoken with any labour organizations. My presentation today was based on discussions with our federally regulated members.
    Maybe, Susan, you'd like to comment on that.
     You have raised a number of points concerning this issue, as also in previous questioning; that is, the concern about people's retirement plans.
    In fact, it is upon the lower-income people who have not earned enough pension credits, if they have a pension plan at all to contribute to, and people who are not in workplaces where there are pensions, that mandatory retirement would have a real, negative impact.
    There was even a person who was in the Ontario civil service who wrote to us. Of course, they have decent pensions there, but she hadn't gotten the credits. She had to go back to work late in life, and she did not have the credits to retire adequately. She felt that she was going to be asked to leave and not have the opportunity to continue working, when she was completely capable. That is the pernicious effect of mandatory retirement: it hurts the people who need protection the most.
    I know there is always a concern about making sure that they make room for other people. I remember that one part of the discussion here has been that we should make room for younger workers, and so on. That is the crux of the pilots' unions' positioning in court. The issue arises here when you take two equally qualified people—and the pilots' union can guarantee that every pilot is qualified—and set them in front of you and say: “You're 35, and you're 60; since you're 60, you're out, and since you're 35, you're in.”
    That is the essential definition of age discrimination, which is why we oppose it. When we're talking about making sure that people have something to retire on, that's what we're talking about. People have to be able to earn their pension and savings so that they can retire safely. It's another part of our advocacy for good pension plans for everybody. But that is for another day, I'm sure.
    As to the interaction with the CPP, I'm not sure how this situation would offend it, because every person who has access to a pension plan and continues working continues to contribute to the pension plan and does not actually take out any pension. Therefore, the pension fund, which has been under threat in the last little while, would actually be more stable, if more people stayed working.
    Furthermore, the workplaces having to take measures to deal with this would in fact be further ahead. They would have experienced workers carrying on in their jobs. There'll be less to do than if the person left and they had to retrain. Really, if you need the extended period of time, great.
    We have waited long enough. There is no need to wait any longer. You can make this change immediately.
    Thank you very much.
    That's all the time.
    Mr. Komarnicki, you have six minutes.
    Thank you, Madam Chair.
    I think no one argues with the basic premise that mandatory retirement should be removed, but the issue is not necessarily black and white, as Madame Folco would suggest, or even the case that was handed down very recently. This morning, I looked at a copy of it, and page 126—it is a lengthy decision—says:
The Tribunal’s finding that Air Canada had not established that being under the age of 60 was a bona fide occupational requirement for its airline pilots at the time that Messrs. Vilven and Kelly’s employment was terminated in 2003 and 2005 respectively was reasonable. However, the Tribunal’s finding that Air Canada had not established that age was a bona fide occupational requirement for its pilots in light of the post-November 2006 ICAO standards was not reasonable.
As [a] result, Air Canada’s application for judicial review as it relates to the bona fide occupational requirement issue will be allowed in part. The question of whether Air Canada has established that age was a bona fide occupational requirement for its airline pilots after November of 2006 is remitted to the same panel of the Tribunal, if available, for re-determination on the basis of the existing record, in light of all three elements of the Meiorin test.
     So it's not black and white. There are some issues, and some of the parties have said that we need to do away with mandatory retirement, but we need to be careful how we do it.
    I noted with interest that the chamber has suggested that perhaps we could do that, but you had some amendments. Maybe you could state briefly what you think the amendments might be, and I would invite the chamber to provide to this committee a written draft showing how you would like those amendments to look.
    I have a question for Mr. Cox, so if you could, please quickly outline what you think the amendments would be and whether you're prepared to submit to this committee a more formal type of amendment that you would think is acceptable.


    Thank you, Mr. Komarnicki.
    Essentially, we've recommended amendments in three areas. The first would be to explicitly permit federally regulated employers to apply mandatory retirement when there is an issue of risk to the safety of the public and/or other workers. The second area is to allow employers to continue to treat employees differently, based on their age, for the purposes of pension and benefits. The third area is to revise the proposed amendment that Bill C-481 proposes to the Canada Labour Code to explicitly state that in cases in which an employee is involuntarily terminated due to safety concerns and is eligible to receive a pension, no severance would be paid.
    Those are the three areas. We'd be happy to submit that.
     All right, thank you.
    Mr. Cox, dealing with New Brunswick specifically, I take it the exception there that would allow age discrimination would deal with pension plans or plans established by the employer for the compulsory investing or locking in of pension contributions at a fixed or a determinable age in accordance with the Pension Benefit Standards Act, or something like that.
    Do we need to go the full way of excluding or allowing for age discrimination where the pension plans are involved? Or can we take a middle ground, as I think was proposed by FETCO? It said we should allow for a discriminatory practice if the operation or terms and conditions of a bona fide retirement or pension plan where a bona fide group or employee insurance plan differentiates between individuals because of age. Can we not take a middle ground and say you can differentiate because of age for the purposes of the benefit plans? That would be less restrictive than New Brunswick but still a discrimination. What's your point of view on that?
    Most of the provinces have that type of wording. It's commonly accepted that that allows for...because a pension plan has a lot of age requirements in there, such as when somebody can take an early pension, the normal retirement age, and how long they can work if they choose to work later. So it allows for those age differentiations without allowing specifically mandatory retirement.
    Wouldn't there be a reasonable impact on the cost of the plans to others who are younger, let's say, when we're dealing with things like disability or medical, those kinds of things?
    I'm not sure.
    One thing to remember too, in terms of the issue of the safety and some of the things that are coming up, is that those exceptions already exist in every single human rights statute, including the Canadian Human Rights Act.
    My question was not in that area.
    My question was, is there not a legitimate financial impact on various plans and programs that companies have that are affected because of age in terms of how they impact others for contributions, the cost of the plans, and so on? Is that not the reason to allow a differentiation or why provinces allow that differentiation?
    That could be. I think the common thought is that those types of differentiations again would fall under the other exception. You'd still be allowed to do them as long as you can show there's a reasonable.... It goes back to the reasonable justification. It's just not a concrete....


    So why do all of the provinces have that specifically legislated? What's the reasoning behind that?
    I think most of these clauses were put in at the outset of....
    Sorry, do you want me to stop?
    No, go ahead, finish your answer, please.
     At the outset, when human rights statutes were being introduced, there was this fear that we did not know what was going to happen to pension plans, so they wanted to put something in there that would protect them.
    You talked about bona fide plans and others. What do you know about that, and how do you differentiate?
    Very quickly, please.
    The Supreme Court said in our potash case that if a plan isn't a sham, then it's a bona fide plan.
    And therefore you could discriminate as to age in that limited way.
    With our act, because it specifically says “termination of employment”, that's allowed. It specifically says that. There was a recent decision in P.E.I. —
    But you wouldn't have to go that far.
    I'm sorry, Mr. Komarnicki, that's all the time.
    Thank you very much to the witnesses.
    I'm going to suspend for two minutes while we bring in our new witnesses.
    Once again, thank you all for being here. We appreciate it.




    We will resume our meeting. We have 45 minutes for another set of witnesses.
    Thank you all for being here.
    From the Air Canada Pilots Association, we have Paul Strachan, president, and Bill Petrie, executive director; from the Department of National Defence, we have Karol Wenek, director general of military personnel, and Brigadier-General John Madower, assistant chief of military personnel. Via video satellite, we have David MacGregor, a professor at the University of Western Ontario. Thank you for being here, and welcome.
    We will begin with the representatives from the Air Canada Pilots Association.
     Thank you, Madam Chair. It's our pleasure to be here today.
    Members of the committee, it's nice to see you.
    We're here, obviously, to speak to an important contemplated piece of public policy, which is Bill C-481. We support the intent of the bill insofar as it seeks to defend individuals from arbitrary or discriminatory practices, specifically termination of employment by virtue of age.
    This is obviously a noble cause, and specific to our case, we agree that paragraph 15(1)(c) is too broad a provision of the Canadian Human Rights Act, because in our instance, there are some 3,000 Air Canada pilots, making up more than half the airline pilots in the country. So we could then unilaterally or de facto set a normal age of retirement for people in similar positions. If under the act that serves as justification for a different employer to terminate the employment of an individual who does not have the benefit of the robust collective agreement and pension provisions that our members do, then it is clearly not appropriate.
    So while we agree that paragraph 15(1)(c) is too broad, we must implore the committee to consider careful exceptions to this bill for fear that this bill also is too broad. It's the role of Parliament to protect human rights, but we don't talk specifically here about individual rights. We're talking about human rights in the broad sense, and that includes collective rights of the members of an organization such as our own. So Parliament's task then is to find a balance between those rights that properly protects the interests of all.
    Our members have negotiated, as I said, a robust collective agreement, of which its pension plan forms part. Our pension plan is a very generous one. It goes to the limits of the Pension Act and the Income Tax Act and then beyond. We have a supplementary employee retirement plan, and in fact incorporate a retirement compensation agreement into the overall scheme as well, so that the vast majority of our members expect to retire from their employment at Air Canada with a pension that places them still in the top 1% of income earners in the country, with pensions of six figures in the vast majority of cases.
    Insofar as Parliament may seek to protect the rights of the individual, you must be cognizant of the fact that you will necessarily impact the collective rights of our 3,000 professionals, who have told us, by a margin of almost 85%, that they favour the current ability to retire at their negotiated age of retirement, which is 60.
    Concomitant with our pension provisions, which I say are very generous, we have a true deferred wage scheme, and by that I mean we have a ladder of progression on our wage scale that starts very low--artificially low--in the early years of employment and ramps up over the course of one's career to in fact overpayment in the final years, which allows our members to maximize their retirement earnings, because their final average earnings, their FAE, are calculated on the basis of those five final years.
    If you stall the progression up the ladder, it stagnates for some period of time, and the transfer of wealth that occurs is significant. Not only is a member now stagnating at some lower level on the ladder, but unless you're in the top 15% approximately, unless you've achieved your highest progression expected up that ladder at the point of stagnation, you will lose to some degree. In the case of our most junior members, the transfer of wealth is measured in seven figures, because not only are they suffering from the lack of progression in their income during the period of stagnation, but they lose the time value of that money and can never recover. So insofar as you're allowing those few individuals who might like to change the rules and stay longer, you're now impacting the rights of all those other members, because now you're forcing them to stay longer if they want to equalize their career potential and expected earnings, but you're also taking away the time value of that money forever. It's a zero-sum game, so you need to be very careful that this bill does not create unintended consequences.


     So it's for that reason that we propose an amendment to this bill. Rather than strike paragraph 15(1)(c) from the Canadian Human Rights Act, it would be more thoughtful and appropriate to amend it to allow for specific exceptions such as in the circumstances in which we find ourselves.
    Our proposal would be, then, that paragraph 15(1)(c) be amended to read that it is not a discriminatory practice if the termination of employment or refusal to employ is because of the terms or conditions of a bona fide retirement or pension plan, and that this is justifiable and balances the rights of the individual with the collective rights of a very large group of people.
    Thank you.
    Thank you very much, sir.
     We will now go to the Department of National Defence, please, for five minutes.
     Committee members, ladies and gentlemen, it's a pleasure to be here today to discuss the proposal to terminate mandatory retirement and its effect on the Canadian Forces.
    As written, the bill would repeal paragraph 15(1)(b) of the Canadian Human Rights Act, which authorizes mandatory retirement once an individual reaches a maximum age provided by law or regulation. Repealing this paragraph would pose a significant challenge to the Canadian Forces operational capability, not to mention to the efficient management of military personnel and cost containment.


    The question of mandatory retirement is both important and complex. This is particularly true for the Canadian Forces. The Canadian Forces reflect Canadian society as a whole, and we are thus bound to also follow its social evolution. We must embrace change, and make along the way innovative and strategic decisions. However, the Canadian Forces must also ensure that the ability to fulfill its mandate is not compromised.


    As you know, the Canadian Forces are a unique employer. We must deliver on our core mandate, that is, readiness to undertake any mission, either domestic or overseas, in order to protect Canadian interests and the population. People, as always, are the core of this ability. It is our people who ultimately determine our success or failure. The Canadian Forces human resource management is unique in that it rests solely on the hiring of recruits, both officers and non-commissioned members, and then trains and develops them along a career path to become the senior leaders of the organization.
    In other words, we do not hire mid-level or senior management from the street. We grow our own from the bottom up. This requires a continuous flow of personnel to ensure appropriate experience and expertise throughout all rank levels. Stagnation at any level negatively affects the entire personnel management structure, particularly if this occurs at the senior ranks. It also affects the operational expertise flow to those specific senior positions. We need leaders who are skilled and experienced but who are also current with the ever-evolving operational and strategic knowledge of the time.


    A second aspect is that the Canadian Forces is governed by the principle of universality of service. Each member of the Canadian Forces must, at all times and under any circumstances, carry out any functions that they may be required to perform, above and beyond the duties of their occupational specification. This includes the obligation to carry out military duties, such as combat, under extremely dangerous circumstances. In simpler words, we are all soldiers, sailors or airpersons first, and workers in our specific trades after. In operations, all individuals are called upon to pick up a weapon and participate in the fight; nobody stands back. Other federal government employees or members of the general public are not required to carry out this important duty.



     These unique characteristics of the Canadian Forces require a special approach to human resource management. To maintain a homogeneous and effective combat force, the Canadian Forces must apply a mandatory retirement age to ensure a steady supply of personnel with the current knowledge and experience required at each level. As I mentioned earlier, fighter pilots, submariners, and tank commanders cannot just be hired overnight. These people must devote many years to mastering their occupations within the Canadian Forces structure. These are men and women we are counting on to become our future leaders.
    Removing mandatory retirement age will result in the Canadian Forces not being able to manage the succession planning efficiently and effectively, creating stagnation and greatly affecting the effectiveness of the entire fighting force, and thus the mandate of the Canadian Forces in protecting Canada, its values, and its interests.
    The alternative to a mandatory retirement age would be to develop bona fide occupational requirements particular to each of the ranks and hundreds of occupations and specialties in the Canadian Forces, in order to ensure that individual age does not affect the ability to perform the specific function at the time, and then administering the testing of individuals on a one-by-one approach on a regular basis, as well as prior to any particular assignments. The burden of such administration and the time resources on the force itself would again negatively impact on the operational effectiveness of the entire force.


    Moreover, the longer members serve, the more wear and tear they incur from the rigorous physical and psychological demands of military service. And thus, the greater the risk will be of individual performance failures, whether physical or psychological, with their attendant adverse consequences on mission success and the health and safety of others.


    Sir, your five minutes are up, so if you finish quickly, that would be appreciated.
    Thank you.
    I would like to conclude my remarks today by saying, first, I am proud to state that the Canadian Forces are delivering well in their mission, but the proposed amendment would significantly impact our ability to continue to do so.
    Thank you very much.
    We'll now go to Professor MacGregor from the University of Western Ontario, for five minutes, sir.
     Thank you for this opportunity to speak to an issue of critical importance for Canadians, amending the Canadian Human Rights Act to eliminate the retirement age.
    Over the past four years, virtually every province and territory in Canada has eliminated mandatory retirement, with the exception of Quebec and Manitoba. These provinces, along with the Public Service of Canada, eliminated mandatory retirement more than two decades ago. The U.S. abolished mandatory retirement in 1986; Australia removed retirement age in the late 1990s.
    As you know, under subsection 9(2), the Canadian Human Rights Act permits employee organizations such as unions or associations “to exclude, expel or suspend” workers on account of age. Moreover, the compulsory age of retirement is at the discretion of employee organizations within the regulated industry under this act. This is surely one of the most egregious examples of ageism on record. Under the provisions of the Canadian Human Rights Act, older workers may be terminated just as Canada is facing a generational skill shortage of enormous depth. More Canadians are living longer, healthier lives, and in many cases they have knowledge and capabilities that exceed those of younger workers. There is absolutely no sense in expelling them from the workforce.
    Especially since the financial crisis of 2008, pension plans are under pressure, and many Canadians do not have financial resources to afford a lengthy retirement. Forced exit from work under these circumstances is an extremely cruel and senseless destiny. Elder Canadians no longer accept the stereotypes of aging. They are forging brand new lifestyles that require continued participation in the workforce. The Government of Canada ought to encourage this exciting new development by abolishing barriers against full participation by older workers.
    As a first step, the Canadian Human Rights Act must be amended to exclude age discrimination in employment. A proactive program to encourage longer working lives should be a priority at the federal level. The human rights of older Canadians deserve to be fully recognized. People over 65, or over 60 in some cases, should no longer be treated as second-class citizens.
    Thank you for your kind attention.


     Thank you. You still have two minutes left, but I'm sure there'll be some questions for you.
    We'll begin our round of questions, and I think we have time for a seven-minute round. Again, if you'd like to split your time with one of your colleagues, that would be fine, or take the whole amount of time.
    We'll begin with the Liberals and Madam Folco, please.
    Thank you, Madam Chair.
    Welcome to all members and our witnesses. I would like my first question to be addressed to the Air Canada pilots group, either Mr. Strachan or Mr. Petrie, as you wish.
    You came to see me the other day, and in our discussions and what you presented here today you mentioned several times that the pyramid scheme--excuse me for calling it that, but it's not negative, it's just a way of describing it--they go through was important to the Air Canada pilots. The system is organized in such a way that the apex is in the last five years of the career of that air pilot.
    But this isn't the only kind of pension scheme airlines have. I understand that other airlines have different types of pension schemes. WestJet, for example, and Air Canada Jazz have different kinds of compensation schemes.
    If you were to change over to a compensation scheme like that of WestJet or Air Canada Jazz, how long would it take? Would you still be against mandatory retirement if you'd had one of those two schemes originally?
    Compared to other groups, you are correct that there are different pay systems out there, and many different types of retirement compensation schemes and pension plans. None that I can think of are as generous as our own, in terms of pay or pension. That, of course, is by design, and it flows from our collectively bargained provisions.
    We're a democratic organization. We take our strength and mandate from the wishes of our membership. Certainly on this issue they are very clear that they see all of the provisions of their employment, including the negotiated age of retirement at 60, as benefits. They are able to draw a very generous pension plan at an earlier age than many others. It does not preclude them from seeking work elsewhere. It's just the provision of employment we all agreed to the day we signed on the dotted line. We knew what it was. We all saw the rationale behind it, because it was of great benefit to all of us.
    In essence, if you were to repeal paragraph 15(1)(c) simply to direct that a fixed age of retirement was bad in all cases, you'd be telling our members that they were discriminating against themselves.
    That is the second part of my question. In your presentation you said that in a study you carried out there was a margin of 85% in favour of the continuance of this pension scheme. Is that correct?
    We actually conducted two.
    The 85% was when?
    It was not quite 85%. It was more than 80% and less than 85%. That was some three or four months ago. The one we conducted initially was when the complaints were first made to the Human Rights Commission. We sought our membership's direction on where they wanted us to go. At that time the majority was greater than--


    How was that pension scheme brought into your plan originally?
    I believe that happened long before I was born, so maybe I'll let Bill speak to that one.
    Mr. Petrie, I hate to ask you your age.
     The pension plan has been around since the 1950s. The airline, like all federal employers, introduced a pension plan.
    How was it introduced? That is the gist of my question. Was it put to a vote by Air Canada employees?
    I wasn't there, obviously, because I'm not that old. I understand it was part of the negotiations. All changes that have been made to the pension plan--and we have made several changes over the years since its inception--have been ratified in the bargaining process. So they were voted upon by the members when they voted on the collective agreement. The pension is just one aspect of the collective agreement that we seek changes to. When it is changed, it goes through the ratification process.
     The reason I asked that question to either Mr. Strachan or Mr. Petrie is that I've had a chance to read the notes that Mr. Vilven had given to us.
    On page 4, he says, “The age-60 mandatory retirement provision was implemented at Air Canada by fiat of the Air Canada management in 1957.”
    So it's definitely before all of our time. He also says:
There was no negotiation involved. As late as 1980, the mandatory retirement provision was not yet located within the collective agreement or within the Air Canada Pension Plan. It existed simply within the policy documents of Air Canada. In the mid-1980's, the mandatory retirement provision was inserted by reference into the collective agreement itself. When that occurred, at no time did the pilots' union place the question of mandatory retirement before the general membership of the union for discussion or for ratification. It was simply inserted without ratification, and without even advising the membership that that had been done .
    Would you care to comment?
    Go ahead.
    I think that's patently incorrect, because every collective agreement that has ever been established between Air Canada and its pilots has been ratified by the pilots. I'm not sure where that flows from, whether or not it was initially instituted by fiat. You know our money is instituted by fiat. It forms part of a collective agreement and it gets ratified by the pilots. It's of great value to Air Canada. You have to remember that it takes a full 16 months for Air Canada to replace a retiring pilot.
    Let's stick to the question.
    No, no, but there's a value—
    Let's stick to the question. Thank you.
    So there's a value for Air Canada in that, because they can plan—
    Are you cutting me off, or are you cutting him off?
    Just let him finish.
    Madam Beaudin.


    Thank you very much, Madam Chair. Thank you for being here today, gentlemen.
    Mr. Strachan, if I understand correctly, if I work for your organization for 40 years, I know exactly at what age I will be leaving, in other words, 65. That is when I will be required to leave.




    Sixty. Even worse.
    You talked a lot about the generous pension plan, but I would think people have other reasons for wanting to work, as well. They may enjoy working, they may wish to realize their potential or they may want to earn a living. Not every company offers the same generous pension benefits you do. A situation that often comes to mind is that of a stay-at-home mom who, after raising her children, decides to embark on a second career and ends up being hired by an organization like yours much later in life. She already knows that she will have to leave that job at the age of 60. Nevertheless, she may still want to work past that age and may still have the skills to do so. Does the bona fide occupational requirement (BFOR) not ensure that the employer can retain its employees, on the one hand? On the other hand, I do not think an employer could be required to keep an employee who did not meet the job requirements.
    A bit earlier, Mr. Madower, you said that the armed forces needed skilled and healthy people. If a member of the military no longer meets the organization's requirements, the employer is not required to retain that employee. In my view, legislation already exists to that effect.
    I am glad to be part of the workforce at a time when we are talking about changing the mandatory retirement age, because older people are increasingly healthy nowadays. So they can keep their jobs. What are the main reasons for keeping the mandatory retirement age? Pension plans? Career opportunities for the next generation? Are those the reasons? Does an employer not have to ensure that the person doing the job has the right skills for that job? Employers would do better to keep their employees and to leave it up to them to decide when to leave. It is basically society's choice to give people the freedom to decide. Yes, there are costs involved, but is it not worth it in the end?
    I would like to hear your thoughts on that.



     Thank you, Madam Beaudin.
    I have to go back to this. From where do we draw our mandate? From where do we formulate the position we adopt? It comes from the same people.
    It is an interesting question. Is it discrimination if everybody is treated the same? Everybody in our organization will eventually come to the same fate. They'll be asked to take their pension at the time that we all agreed it would be done.
    The pension doesn't exist in isolation, obviously. I try to make the connection between it and the collective agreement. It forms an integral part of the entire agreement that we have and our whole system of seniority and the rights and privileges that stem therefrom. So it's tremendously important to our organization.
    You're quite right that not everybody has the same rights and benefits that we do. In fact, I can't think of anybody in Canada, certainly in our profession, who does. But that goes back to my comments on the broadness of this proposed legislation, that it is too broad, because not all situations are the same.
    Mr. Komarnicki made reference to the fact that things are very rarely black and white. I would entirely agree with that, and I would say that the truth and the proper position for a parliament to take lies in some shade of grey.
    So I caution the committee not to contemplate this bill in its current form, as it will have unintended consequences.


    The bill seeks to eliminate mandatory retirement and, in so doing, adheres to the Canadian Charter of Rights and Freedoms.
    But we could include an amendment giving employers one or perhaps two years to adopt the necessary measures to adjust their pension plans and what they offer employees. That is pretty clear to me.


    I would say if you included our proposed amendment, where you're protecting the bona fide pension plan, the situation such as our own, where there is a very generous, in fact bona fide, pension plan, especially where it's concomitant with a deferred wage scheme, a true deferred wage scheme such as the one that we've developed for ourselves, this is an appropriate place where an exception not be made. That's why we make the proposal for an amendment to specify those situations as an appropriate exemption, which puts it in keeping with a number of jurisdictions. British Columbia, Alberta, Saskatchewan, New Brunswick, Prince Edward Island, and the Northwest Territories, I believe, all have some form of exception, most robustly in New Brunswick, as has been noted. But all those jurisdictions agree that there are situations...and they all make reference to the same situation, where it is in the case of a bona fide retirement or pension plan, and perhaps benefits as well.


    I just have one question, Mr. Strachan.
    Not all of your pilots have the opportunity to enjoy long careers at Air Canada. People are hired at different ages. So pilots who join the organization later in life are not entitled to the same plan. They do not receive the same pension benefits others do.


    Yes, and it depends. In fact, even two of us starting at the same age may have very different pension expectations as well. I'm a former member of the Canadian Armed Forces, so I have almost 10 years of pensionable service in the Canadian Armed Forces, which I have been allowed to repurchase at Air Canada. So my pension expectations would be different from an individual who was not in that position.
    We can't very well legislate the age at which Air Canada must hire a pilot. We all start at different ages. Age itself is not discriminatory; it happens to all of us. It's very difficult to put a finger on that. But these are terms and conditions of employment. One freely agrees that when they join Air Canada these are the terms that will govern.
    It's interesting that certain members who have realized the full benefit of all those provisions that we've negotiated seek now, only at the ultimate moment, to change them.


    Thank you very much.
    We'll go to Mr. Martin, please.
    Thank you.
    Do you belong to the CLC?
    No, we do not.
    Do you belong to any of the umbrella labour organizations?
    The only affiliations we have internationally would be with other pilot organizations within the Star Alliance carriers.
    Have you had any conversations with any of the other labour groups out there about this?
    Bill, can you...?
    We've had some discussions with the other unions at Air Canada. We've had some preliminary discussions with representatives of the Canadian Labour Congress, who have advised us that they understand the position we're taking. They understand the balancing of the individual rights with collective rights and the ability to be able to negotiate pension plans, and the ages of retirement for purposes of the pension plans.
     In your conversations within, did they have any blanket position that they presented?
    I don't think we'd be comfortable in taking a position on behalf of the CLC, Mr. Martin, thanks.
    Okay. I just wanted to know that.
    You talk about the issue of unintended consequences here. Although concerned, I'm not so much concerned about those who are protected with good collective agreements and have pensions that they can look forward to and can retire at a decent age and live in some dignity. What concerns me are the hundreds of thousands of people out there who have no pension at all. What seems to be happening within our labour force now, and in society, is rather than working at trying to make sure everybody has a decent pension, the default position is “Just let them work a little longer”. So you don't retire at 60 or 65. We see them. We see people in the stores, working in retail, in restaurants, and in different places, and more and more it's students and it's the retired, or the retired who have no pensions, who are doing this kind of work.
    It seems an interesting labour market strategy, frankly. In terms of unintended consequences, if we get to a place where we decide even to move the age of qualifying for the Canada Pension Plan, for example, from 65 to 67, that affects a whole lot of people and of course takes a bit of pressure off the Canada Pension Plan itself and the Canadian government.
    Do any of you want to respond to that? Have you thought about that at all, in the context of Bill C-481?
    I would say that you know that not everybody does have a robust pension plan such as ours. That's certainly not within my purview, but I certainly agree that it is within the purview of this committee and Parliament to address. It's sort of beyond my pay grade, I guess. But you are correct, and you note that many don't. This bill, amended as we've suggested, would provide that protection, except in those circumstances where there is a pension plan. So you're protecting the pension plan. You're protecting the collective interests of the groups who have negotiated it, but you're also defending the individual rights in cases where they need defending.
    Three minutes.
    That's all.
    Mr. MacGregor, did you want to respond to that? I don't know if you had the opportunity.
    It's interesting to hear the same arguments across the table that were confronted in Ontario when they were making their changes. Ontario decided not to exclude pension plans from the legislation, and as far as I know, there's no harm caused by the elimination of mandatory retirement to any of these pension plans. I'd be hard pressed to see any example of that happening across Canada where mandatory retirement has been removed.
    Similarly, I was happy to hear the person representing the armed forces mention BFORs, which is bona fide occupational requirements. That's certainly a better alternative than simply dismissing people because they've reached a certain age.
    That's all I would like to say.


    All right. Thank you very much.
    Mr. Martin, you actually have two minutes left.
    Actually, that stimulates some thought.
    Given the number of people who are working beyond 60 and 65 out there in the workplace, mandatory retirement doesn't seem to be having much of an effect.
    Is this an issue more for those who have good positions who want to continue working, making the good wages that come with that, even though they may also have good pension plans? And is it not so much a concern—which is mine—for those who actually would like to retire at an early age so they can get away from some of the difficult work that they often have to do? You know the wear and tear on the body that comes, for example, from working in a steel plant or a paper mill. They'd like to retire at 60 or 65, while they still have a little bit of health left and a little time in front of them where they can enjoy their families and some recreation.
    I wouldn't like to see us doing something here in haste that would somehow have an unintentional consequence that would affect people who really want us to focus on getting them a decent pension scheme that they could plug into so that they could in fact retire with some dignity.
     Thank you very much.
    We'll now go to Mr. Casson for seven minutes, please.
    Thank you, Madam Chair.
    Being a million-miler with Air Canada, I should focus on the pilots, I guess, and make sure they're doing their job properly, but I'm going to focus on our folks here from the military.
    General, you did lead into a bit about what it would take for the military to change the present situation in order to test everybody for each job they have and make sure they are capable. The fact that your mandate is dictated to the military from the government and the tasks that we ask you to perform can change very rapidly, whether they involve getting ready to go to Haiti tomorrow or getting ready to go to Afghanistan for 10 years, or doing the job we ask you to have to be ready to do that and the training that goes into that.
    I know from experience, from going to where our troops are deployed, that whatever job they are doing, whether they are a mechanic, a clerk, or whatever, or whether they're in a combat unit, they all carry a weapon. They all have to use it, and they all better be ready to use it and be capable of doing so. That aspect of what you indicated is important.
    I just want to zero in on the safety concerns there would be for the armed forces if this bill were implemented, and also on your ability to recruit and retain at a level to replace.... I don't know if there's a bubble in the military the way there is in the rest of the working world, such that in the next number of years there's going to be a large number of people leaving and you'll have to be ready to fill those vacancies or be able to still carry on the mandate, whether or not you fill the individual job or whatever.
    Maybe you could just talk a bit about that and the safety concerns it would create for our men and women in uniform, and also the ability to replenish and recruit.
    Sir, thanks very much for the question.
    Although I indicated what it would take, I would also like to take a different approach should the mandatory retirement age be eliminated. What I would like to stress is that we also assess that as being problematic from a management perspective, and hence the position we've taken is that for the Canadian Armed Forces the mandatory retirement age should not be eliminated.
    With respect to your observation about everybody needing to be a soldier, sailor, or airman first and then a particular occupation second, I just had the pleasure of returning on Sunday at 6 o'clock from Afghanistan, having flown out to one of the forward bases we had there. You had infantry soldier, infantry soldier, infantry soldier, and another person who looked exactly like an infantry soldier. She carried a weapon. She was just as capable as the infantry soldier, but in addition, she carried a camera, because she was part of the combat camera team. So the particular occupations we ask our men and women to do are exceptionally demanding, hence the position we have taken here.
    For us, it's predominantly a question of force renewal and ensuring a vibrant, capable force that is capable of defending the men and women of Canada and our interests. My assessment would be that a removal of mandatory retirement age would be problematic with regard to force renewal. We would also likely see stagnation, as there would be a reduction in the recruiting we would need to see to ensure that constant flow-through to revitalize and rejuvenate ourselves.
    Karol, would you care to add anything?


    Just to elaborate a bit on the issue of safety, I think our primary concern is the increased risk of individual performance failure as people's physical and psychological fitness naturally deteriorate over time. We have a little bit of internal evidence that supports this view.
    Several years ago, we had what I would call a bit of a spike in the number of medical releases we were seeing in the regular component. I commissioned a study to look at what the correlates were of that spike, what the causal factors were, or some of the antecedents. The primary factor that predicted that spike in medical releases was length of service, particularly past 12 and 15 years of service, and particularly in the harder combat trades, as we term them. There was that increased incidence. Most of the issues were musculoskeletal injuries. In other words, this is all attributable to wear and tear on the body from jumping out of aircraft and riding around in hard vehicles, those kinds of things.
    So that was a supporting piece of evidence for that deterioration. We know also that with age, your physical abilities deteriorate somewhat. It's not rapid, it's not the same across people, but there is that kind of deterioration.
    In a small fighting force like ours--it is relatively small by world standards--it's important that everybody be capable of carrying the load. That's what the universality of service principle refers to, really. It gives us the capability to rotate individuals and units through operational settings. We can't just send people over there for an indefinite period of time. It would essentially result in fighting those units down. So they have to be rotated, and that means the bench strength has to be there to allow for that rotation.
    The risk here is that if you have people who are going to those settings, while they may be prepared to accept the risk to themselves personally, we can't accept the risk that they would pose to others. Unit effectiveness is a function of the collective performance of all of the people on the team. If one individual fails, the team may fail, and that may mean lack of success of the mission or injuries to others.
    Thank you.
    I guess we're out of time.
    Yes, we are out of time. Thank you very much.
    I want to thank all the witnesses for being here. We apologize that we had to hurry through, but I think we were able to get some very important information. Thank you for being here.
    I'm going to suspend for one minute. Then we'll go into clause-by-clause consideration of this bill.
    I want to let the committee members know that I have a very brief amount of business pertaining to next week's meeting. I'm going to discuss it during the last two minutes of our meeting today, just so you know.
    Thank you.




     We are ready to resume clause-by-clause.
    Are we ready to begin, Madam Folco?
    Yes, Mr. Komarnicki.
    I have a point of procedure or order, I'm not sure which. I'd like to raise a matter and then discuss it before we get into clause-by-clause.
    All right. I think there's time to do that.
    I haven't spoken a lot to Madam Folco about this.
    Excuse me for interrupting, Mr. Komarnicki.
    Are we not in camera?
    Normally clause-by-clause is public. So we are public.
    Sorry, Mr. Komarnicki.
    I want to raise a point on this. It's a matter, perhaps, of due diligence and ensuring that we get this right. What I'm going to propose is that we table the clause-by-clause for a future time, until we can have the legal experts look at some of the proposals people have had for amendments.
    I know there's been some agreement on what the amendments might look like. But Mr. Strachan indicated that the way the legislation is now enforced is too broad and needs to be restricted. Mr. Martin, in his questioning, said we shouldn't be proceeding with haste and having it result in unintended consequences. I think there's general agreement that mandatory retirement, as we now know it, needs to go, subject to some exceptions. I know that FETCO, for instance, had suggested four or five potential amendments. I'm not so sure that I would agree with all that they proposed. But two, for sure, have been raised by witnesses from the Human Rights Commission and other organizations. One had to do with benefit plans. We actually haven't heard from any expert witness who would tell us what kind of impact this legislation would have.


    Mr. Komarnicki, I'm sorry. You began by saying you wanted to propose a motion. If you have a motion, please put it on the table. Then we can discuss it.
    I was working my way up to the motion.
    We need the motion, and then you would be free to discuss the motion.
    Mr. Komarnicki: We're running a little fast.
    The Chair: Yes, you're adding on, talking about additional witnesses. Could we...?
    We were supposed to do clause-by-clause. If we're not going to, then I need a motion.
    I was nuancing my way towards it.
    I appreciate that.
     I'll get right to the motion.
    I was making the point that we hadn't heard anyone who was an expert on the proposed amendments. Having said that, for a whole lot of reasons, which I could get to when we're discussing the main motion, I would suggest that we table the clause-by-clause until we've all had an opportunity to go back to our offices and consider what these amendments mean.
    I know the Chamber of Commerce will propose some amendments to have legal people look at this and come back and say whether we want to go with it or not. But we want to get it right. I don't want to proceed in haste and today go clause by clause and start arguing on behalf of any particular amendment without having a good grasp of it.
    I move a motion that we table the clause-by-clause for another meeting. I'm not sure how you would bring it back on the agenda, accepting that we would need a little time to get the amendment from the Chamber of Commerce and then have some experts look at the proposed amendments. That's my motion.
     I've looked around the room and it looks like we have a consensus for that. Maybe what I'll do, though, because it looks like there are a few people who want to speak....
    If I'm hearing you correctly, we would look at a motion that would say that the clause-by-clause consideration of the Bill C-481 be delayed until the committee can hear from individuals who have expertise regarding the specifics of the amendment. Do you want that added or do you just want it tabled?
    I think to be tabled to be brought back by any members. On March 3?
    We come back on March 1.
    Let's do that then.
    March 3 is a good time.
    All right. If that's the motion, then we'll have to discuss it, because it is changing the work plan entirely.
    The motion is that the clause-by-clause consideration of Bill C-481 be tabled....
    Just a second, Madam Chair.
    Let's just wait and see what they are going to do. That is setting aside.... You could do it after March 1.
    A colleague of mine--and maybe he could speak to it--is proposing that we not put a specific date to it.
    Perhaps he wants to speak to it. I'm not sure. I hadn't put a date on it, but....
    Do you want a date, or do you want it to say that the clause-by-clause consideration of Bill C-481 be tabled?
    Be tabled, period. Maybe you can indicate if you wish....
    We have a timeframe that we have to work within anyway. I think we're all in agreement. It appears to me that we don't want to deal with clause-by-clause today.
    I think if we could get a motion that would at least tell us that, then we could go further, and then probably have a separate, subsequent discussion about the work plan, because we do have certain issues.
    Maybe you could revamp this motion and just suggest that we do not deal with clause-by-clause today.
     I think we are all in agreement.
    Then we'll discuss the work plan, Maria.
     I'd like us to look at a date, though. It's going to take forever.
    Maria, we'll have to look at a date and agree on a date anyway. But right now it gives us the ability to not go through this clause by clause. We won't do anything else unless we're all in agreement.
    The motion on the table right now is that the committee not deal with clause-by-clause of Bill C-481 today. Is that the motion?
    Mr. Komarnicki.


    That it be tabled, which means I think it can be brought back at some point.
    What do you want then? Tabled or not?
    I would like to ask a question.
    I would like to bring an amendment to Mr. Komarnicki's motion. I just want to know at what point I can bring my amendment.
    You can insert a date, or we can make that decision today and then we can go to that discussion. You'd like it to be a part of the motion. All right.
    Eventually. Obviously Mr. Komarnicki doesn't want this, and I supported his part, but I want to add another part to it, which is the date.
    Are you willing to take a friendly amendment, Mr. Komarnicki, concerning the date?
    Not over the objection of my colleague, no.
    She can vote the amendment--
    So you won't support the amendment or the motion. I just want to make sure we have a motion.
    Let me be clear. My question was at what point at this meeting in the discussion about Mr. Komarnicki's motion can I bring in an amendment. It's a real question. I want to know, and I want to have an answer.
    Yes. I don't think that is up to.... If Mr. Komarnicki wants to insert that in his motion at this point, he can. He has chosen not to.
    We have two options. We can either discuss and vote on the motion as he has presented it, or you can propose an amendment, or I suggest option number three is that we deal with this motion, which means we're not going to go through clause by clause, and then we discuss our work plan going forward.
    My question remains. When can I propose that amendment?
    If it's an amendment, then you can propose an amendment right now to his motion. We want to make sure we have the motion, that the clause-by-clause consideration of Bill C-481 be tabled. That's the motion. And now we have an amendment.
    I propose the following amendment, that the clause-by-clause study of Bill C-481 be resumed at the regular meeting of this committee on Thursday, March 3.
    The reason I give Thursday is simply that we'll come back on Monday. It gives us two days and possibly a meeting with other people to get the information.
    I would like to say, Madam Chair, whether it's Thursday, March 3, or at a later date, what I really want is to have a definite date at which we would resume and finish the study of this bill. If people want a later date, like the next week, I'm amenable to that as a friendly amendment, but I would like to have a specific date.
     All right. Right now we're dealing with your amendment, which would say that the clause-by-clause consideration of Bill C-481 be tabled and would resume on March 3.
    Yes, Mr. Vellacott.
    Can you refresh our memories on our work plan right now? What do we have occurring on March 3?
    Yes, I'd be happy to.
    We're finishing the adoption study this coming Thursday, and then when we return after the break we are going to be doing Monsieur Lessard's study on Tuesday and Thursday on the EI referee board. That's what our work plan says right now.
    What happened to Bill C-304?
    We hadn't discussed when we were going to be resuming that. According to our work plan, this was—
    It was first on the list to be done. It was referred to the committee by the Speaker to be dealt with.
    Mr. Martin, unfortunately we didn't allot enough time to it. Let me just finish the explanation. I'd be very happy to explain.
    We're allowing time for everything else.
    Again, the committee can change the work schedule, but I'm just answering the question as to what the work plan is for the next Thursday and the following Tuesday and Thursday when we return.
    You are capable and able to change it, and that will be up to the committee.
    Right now, we are discussing an amendment to a motion. The amendment would say we would resume the clause-by-clause on March 3.
    Next on our speaking list...
    Mr. Lessard, we'll get to you, but Madam Minna, you were on the list to speak. Did you want to speak to this amendment?
    If I could, yes. May I?
    Yes, go ahead.
    Thank you, Madam Chair.
    I want to say a couple of things. I don't disagree with Mr. Komarnicki's original motion, but I do think we ought to have a deadline. I'm concerned that other things might come up, and I don't want to have to go back to another meeting.
    We had identified this as a priority at one point. These things happen when you're doing legislation. It's an important piece of legislation.
    Because of new information, we need to do our job properly. I understand if not March 3, then the week after, but I would like to see a date.
    If our colleagues opposite could agree, if it's not Thursday, March 3, then the following week—I can't remember what we were doing—we could choose a day then. In the meantime, we'll have had a lot of time for all of us to look at the amendments, to discuss them with respect to our own people, come back, maybe discuss some unofficially, and then come back and finish it off.
    I would really like to put a date on it. That's my request.
    I know there are motions on the floor, and I appreciate that.


    There are, and that's why we have to deal with them.
    Maybe we can amend those motions if there are friendly amendments on the other side to agree to a date. We can change the amendment to another date, or I could do that.
    But I would rather see a specific date we could come back to.
    Right now we're dealing with an amendment that says March 3.
    Committee members, we only have about six minutes left, because I have to talk very quickly about next week's meeting. We have a number of speakers on the list. This is a bit silly, to be frank. But anyway, I guess we'll just continue speaking.
    Mr. Savage.
    I think I support both Mr. Komarnicki and Madame Folco on this. It's very simple. This was a bill for which we only allocated a small amount of time because it seemed at the time everybody was supporting it. Now some good issues have been brought up that need to be dealt with, so we need to deal with those. I think Madame Folco has indicated some openness to doing that.
    But because we only allocated a small amount of time doesn't mean that it now goes to the bottom of the heap, so to speak. I think we should give Madame Folco the respect of setting a date. It's two weeks away or more. I think that's reasonable. We can get everything done, in my view.
    I also think we need to allocate some time on Thursday to have a look at our agenda over the next couple of months and reallocate Bill C-304, which Mr. Martin mentioned. It's important. We have a couple of motions that we have to discuss that haven't previously been dealt with by the subcommittee or by the whole committee.
    I think we need to spend some time on our agenda, perhaps on Thursday.
    All right.
    Mr. Martin, please.
    Thank you for the opportunity to make my case here.
    I'm in agreement with the motion by both Mr. Komarnicki and Madame Folco on Bill C-481.
     I guess I'm looking for some advice from the clerk as to what a reference from the Speaker means in terms of the order of business of the committee.
    We had a reference, before Christmas, of Bill C-304. We're very close to getting it done. If we put it on the agenda for Thursday, I think we could get at least that piece of business out of the way and get it back into the House, where it can be dealt with in a more fulsome fashion. Then we would have lived up to our responsibility here to respond to that kind of reference and to make sure that it in fact happened.
    We have a whole bunch of things hanging out there now. The biggest priority for me, and at one point for this committee, is Bill C-304. At a meeting a week ago, we suggested--I believe it was Mr. Lessard--that we take half an hour before our regular meeting at some point. I thought that was going to happen over the last week or so. It didn't happen, even though I thought we had unanimous consent to in fact do that.
    If we could get to Bill C-304 at some point on Thursday, I think we would be living up to our responsibility here of responding to the Speaker's referral of this very important matter to our committee.
    To answer your question, we have until April 14 to get to Bill C-304 and report it back to the House.
    We have so much to do, but that's why we have a work plan. Part of our problem is that we keep getting off our work plan, because we're quite reactive and I think we need to be proactive. I think we have a good work plan set until the Thursday after we get back from break. After that, there's nothing scheduled, so that's when we can finish Bill C-304. I would think we could finish Bill C-481. We also have an invitation out to the minister to come. Then we would also begin the disability study.
    I think rather than being too reactive on some of these things, let's stick to our plan. It's amazing how we can actually get some things done if we do.
    I hear you, Mr. Martin. We have a motion right now that we have to deal with. We're almost finished our time. Let's deal with the motion. Then I can get a consensus and we can maybe begin half an hour earlier on Thursday and at least see if we can discuss this and then finalize our plan. I'm not saying that we can get to Bill C-304 on Thursday, but we can decide what date we will look at Bill C-304 and what we will do after Mr. Lessard's study, unless Mr. Lessard is willing to give up that study. But I know that he was very adamant that he wanted to get to that, and that was what we had all agreed to.
    Right now we're looking at March 3 to resume. That was the date you were looking at. Did you want to keep that date?
    We are just about out of time. We do have a list of speakers.
    Go ahead, Mr. Vellacott.


     I think we should just leave it so that we have a fuller discussion in terms of how we're staggering the whole work plan from here. That's all my point is.
    Mr. Lessard, you're next.


    I was getting worried, Madam Chair.
    We had decided to give priority to other matters, including the decision to deal with the long form first. There are two motions before the committee. We dealt with one of them, and now we need to deal with the other. It should not take all that long. We had agreed to make that the priority.
    We had also decided to make Canada summer jobs a priority. It might be a good idea to say that we agree....


    Mr. Lessard, we're not discussing our work plan at this moment. We're discussing the amendment. So March 3--


    That is what I am talking about, Madam Chair.
    She said that is not what she wants to talk about.
    You do not want to discuss the work plan? We are in favour of Mr. Komarnicki's motion, as well as Ms. Folco's amendment.
    However, I would say that we should revise our work plan so as to take into account the priorities we had already set, since you said earlier that this was taking us off course. So we need to rewrite the work plan and meet a bit earlier on Thursday in order to update all that. I don't think it is productive to rush through it. Perhaps we could redo the plan and, on Thursday, before we get to our regular business, decide on a new work plan.


    All right. Our meeting is pretty well over. What I would like to suggest is that we meet half an hour early on Thursday so that we can discuss--
     We're not going to have a vote, Madam Chair?
    There are still speakers on the list, and this is what we--
    An hon. member: Couldn't we agree to have a vote on that?
    The Chair: Well, I still have speakers, and I don't have time right now for you to speak.


    What is on the agenda for Thursday, Madam Chair?


    This is what I want to discuss with you.
    We have planned for the last four weeks to finish up the adoption study. So we have one hour of witnesses in the first hour. In the second hour our analysts want to discuss the options for their report on the adoption study.
    That's what we have planned. We have had some difficulty getting the witnesses we had been trying to bring in, but we have another panel of witnesses who have contacted me, at least. I think they've contacted all of us.
    So we do have witnesses for the first hour. In the second hour we will be wrapping up the adoption study.
    When we come back the week after break we will be dealing with your study.
    Do we have a consensus to meet here at 10:30? Can we all be here at 10:30 on Thursday? I see that some can and some can't. Then at least we can resume this, finish this up, so we know when we're going to be looking at your bill, when we'll be finishing with Bill C-304.
    Is there a consensus?
     I have a point of order.
    If we're meeting early on Thursday, it's to resume debate on her amendment. Is that correct?
    That's correct, but I'm hoping we could get done....


    Ms. Folco raised a very important concern, in my opinion. On Thursday, we will not be hearing from children on the adoption study?



    No, they're not children.
     We will send out a notice. We will call a meeting for half an hour earlier and hope that as many of you who can be here will be here.
    The meeting is adjourned.
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