HUMAN RIGHTS CODE AMENDMENT ACT, 1992 / LOI DE 1992 MODIFIANT LE CODE DES DROITS DE LA PERSONNE
CONTENTS
Tuesday 1 December 1992
Human Rights Code Amendment Act, 1992, Bill 15
David Borwein
Older Women's Network
Barbara Greer, coordinator, advocacy activities
Nina Herman, coordinator, public relations
BeverlyJean Brunet, action consultant
Edwin Daniel
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)
Vice-Chair / Vice-Président: Morrow, Mark (Wentworth East/-Est ND)
*Akande, Zanana L. (St Andrew-St Patrick ND)
*Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
*Harnick, Charles (Willowdale PC)
Mahoney, Steven W. (Mississauga West/-Ouest L)
*Malkowski, Gary (York East/-Est ND)
Runciman, Robert W. (Leeds-Grenville PC)
*Wessenger, Paul (Simcoe Centre ND)
*Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Martin, Tony (Sault Ste Marie ND) for Mr Morrow
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1549 in room 228.
HUMAN RIGHTS CODE AMENDMENT ACT, 1992 / LOI DE 1992 MODIFIANT LE CODE DES DROITS DE LA PERSONNE
Consideration of Bill 15, An Act to amend the Human Rights Code / Loi modifiant le Code des droits de la personne.
The Chair (Mr Mike Cooper): I'd like to call this meeting of the standing committee on administration of justice to order. We are continuing with our public submissions on Bill 15, An Act to amend the Human Rights Code.
DAVID BORWEIN
The Chair: I'd like to call forward our first presenter, Professor David Borwein. Good afternoon and welcome. Just a reminder that you'll be allowed up to a half-hour for your presentation. The committee would appreciate it if you'd leave a little time at the end for a few questions and comments from each of the caucuses. As soon as you're comfortable, please identify yourself for the record and proceed.
Dr David Borwein: I'm David Borwein, an emeritus professor at the University of Western Ontario. I will read part of this presentation; it's probably too long to read the whole lot.
Let me say at the outset that I am strongly and unequivocally in favour of Mr Winninger's bill and fully agree with the arguments he so ably marshalled when he moved second reading of his bill to remove a blatantly inequitable clause from the Human Rights Code, a clause which at present denies protection from discrimination to those aged 65 or more. I'd like to tell you how I've been affected by the practice of mandatory retirement which this clause underpins.
I have two doctoral degrees, a PhD and a DSc for published research work, both from the University of London -- England, that is -- and I'm a fellow of the Royal Society of Edinburgh. In the academic year 1988-89, I was professor and head of the mathematics department at the University of Western Ontario, as I had been since 1967 after having joined the department in 1963. I was well respected both within and without the university as a teacher, an administrator and an active researcher in an area of pure mathematics known as analysis. I had recently been president of the Canadian Mathematical Society and I had a sizeable research grant from NSERC. I was active and fully fit both physically and mentally.
Then on July 1, 1989, I was mandatorily retired against my will, solely because I had turned 65 the previous March. Despite nothing having changed with regard to my abilities, I was suddenly relegated to being a non-status academic, though I was granted the largely routine designation "emeritus professor." No longer could I expect, as a right, to teach, to have an office or to take part in the academic activities of the mathematics department. Only after strenuous efforts was I able to obtain a minimal post-retirement appointment at a derisory salary, an appointment which has to be renegotiated each year. Needless to say, I am glad in the circumstances to have this appointment, because mathematical teaching and research are of supreme importance to me.
Seasoned and productive academics constitute an important resource which society can ill-afford to squander. It is a bizarre notion that at age 64, a world-class scientist or historian, for example, can be considered a prestigious and valuable asset to a university, but immediately ceases to be so at age 65.
Universities differ from other places of post-secondary education in that they not only transmit knowledge but generate new knowledge by means of research. Research in particular is not judged by the age of its generator but by established criteria of excellence. In the four years since I was forced to retire -- actually, it's three and a half; it feels like four -- I have taught, supervised a graduate student and maintained an active research program, in recognition of which NSERC has continued to fund me generously.
I would like now to mention some additional thoughts about mandatory retirement, particularly as it affects universities.
Mandatory retirement based on age is an arbitrary and unjust discrimination. It violates both the spirit and the letter of the Canadian Charter of Rights and Freedoms, which surely was meant to apply to all Canadians, not only federal civil servants. It is ironic that Supreme Court judges, whose own retirement age is 75, ruled that it was appropriate to retire university faculty at 65 in provinces such as Ontario -- but not Quebec, Manitoba and New Brunswick -- presumably because the judges, with the two women among them dissenting, considered that the discriminatory age-related clauses in the human rights legislation of those provinces could be demonstrably justified in a free and democratic society. I, of course, do not agree that the justification has been coherently demonstrated. At best, the arguments for retention of those discriminatory clauses represent a victory for bureaucratic expediency over basic rights.
The Supreme Court judgement states:
"Mandatory retirement is intimately tied to the tenure system which undergirds the specific and necessary ambience of university life and ensures continuing faculty renewal, a necessary process in enabling universities to be on the cutting edge of new discoveries and ideas. It ensures a continuing and necessary infusion of new people. In a closed system with limited resources, this can only be achieved by departures of other people."
But I contend that the tenure system and mandatory retirement are distinct and separable. Indeed, the University of Western Ontario did not have the tenure system before 1970, even though it did have mandatory retirement in that period. Also, people will retire, or die, even without mandatory retirement, and many will retire early. At most, the abolition of mandatory retirement would result in a temporary perturbation before an equilibrium of retirement and renewal is reached. The argument that abolition or relaxation of mandatory retirement would be a substantial economic burden has not been borne out by the experience of places such as Manitoba, Quebec and New Brunswick, where mandatory has been abandoned, or in the United States, where the retirement age was recently changed from 65 to 70. Nor have any informed estimates indicated any catastrophic consequences.
The problem of employment of new young faculty is related to underfunding of the entire system and is not a consequence of the presence or absence of mandatory retirement. We have that problem now in Ontario with mandatory retirement in place. It is also fallacious to assume that 65-year-olds do not have new and worthwhile ideas. As Madam Justice Claire l'Heureux-Dubé wrote recently: "The stereotype of older professors clinging desperately to their posts despite declining abilities is simply not warranted on the evidence. Generally speaking, those who start by being highly productive and creative remain so as they get older, and age seems to have very little influence on the quality and quantity of work produced. Studies at the University of Alberta show that the greatest decline in performance occurs in the age groups 40 to 45 and 45 to 49, and not in the older groups as many assume."
She went on to say, "Even if the age cap were removed, the vast majority of faculty would continue to retire at age 65 or earlier." She also said, "The argument that forced retirement leads to more positions for younger academics, thereby at once allowing a fresh infusion of ideas into the institution and remedying the problem, is superficially attractive but does not stand close scrutiny."
All projections indicate that in a relatively short time there will be a substantial unfilled demand for faculty. Not so long ago it was argued that women should not be employed in certain occupations because this would limit job opportunities. In any case, basic rights should not be denied to a group for either fiscal considerations or the supposed needs of some other group.
Those entering the academic profession in midlife -- as some women, in particular, do now -- are especially disadvantaged by mandatory retirement. They could be reaching the peak of their professional careers when they're made to retire, without even being able to accumulate a reasonable pension.
The choice of age 65 for retirement is entirely arbitrary. For academics in the United States it is now 70, and mandatory retirement is scheduled to be abolished completely at the end of next year. That's in the United States. For Canadian judges, as you know, it's 75. For the College of Cardinals it's 80. For physicians, politicians and the self-employed there's no retirement age. Life expectancy has risen dramatically in this century. At the turn of the century it was 45, and it is now 75. At 65, men in good health can expect to continue enjoying good health for at least another 10 years and women even longer. For gerontologists, 65 is the paediatrics of the golden years.
I don't know how the times goes. I have further material, excerpts from A Policy Statement on Retirement and Non-Discrimination on the Basis of Age by the Canadian Association of University Teachers, and a lot of material which, to my mind, puts the whole question of mandatory retirement into some sort of context, which of course you have before you. Can I proceed?
The Chair: You still have 20 minutes left.
Dr Borwein: I'll go on then.
The following excerpts from A Policy Statement on Retirement and Non-Discrimination on the Basis of Age, adopted in 1986 by the Canadian Association of University Teachers, give some background information about mandatory retirement:
"Age discrimination from a general perspective is one of many forms of discrimination which have come to be regarded as unacceptable and are being prohibited by law. It is simply the latest addition to the list of legally prohibited discriminatory practices.
"The concept of normal retirement age, the age at which an employee becomes eligible for full pension benefits, is logically distinct from that of mandatory retirement age and should be distinct in practice as well. The concept of normal retirement age was introduced in the German empire through laws passed in the 1880s which provided entitlement to benefits at age 70, at a time when only a small percentage of workers lived beyond that age. Other countries subsequently passed similar legislation. By the mid-1920s, the normal retirement age had been reduced to 65 in Germany and Britain, and Canada introduced national pension entitlement at age 70 in 1927.
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"The confusion between the concepts of normal retirement age and mandatory retirement age began with the mass unemployment of the early 1930s. Older employees were often discharged in order to continue employment of younger employees with children. In effect, older employees were often compulsorily retired, albeit not in a systematic way, and in the United States they had no pension benefits.
"The resulting situation there led to the introduction of social security in 1935, and 65 was chosen as the age of entitlement. The choice of 65 appears to have been largely arbitrary. After the Second World War, private pension plans proliferated in the United States and Canada, generally using 65 as the entitlement age. In the 1960s, the Canadian government followed suit by lowering the age of entitlement of the national pension scheme to 65. The idea of using 65 as a mandatory retirement age, for the convenience of personnel managers, then came into widespread use over the course of the next two decades. Thus the concept of mandatory retirement at an arbitrarily fixed age can be regarded as an accident of convenience which became a convention. A form of age discrimination was thereby institutionalized.
"Mandatory retirement has been regarded as being something more benign than discrimination because of the associated pensions and other benefits, especially in comparison to the situation prevalent in the United States in the early 1930s. Public opinion in North America began to turn away from this view by the late 1970s, however. The mere fact that limited financial benefits are provided does not mean that the individual subjected to this form of discrimination has not been seriously disadvantaged. The Canadian special Senate committee on retirement age policies concluded in its 1979 report `that mandatory retirement based on age involves an infringement of human rights, economic waste, and misconceptions about the relevance of age.'
"The chairman of the American House select committee on aging, Claude Pepper, gave a similar characterization in 1978:
"`Age-based retirement arbitrarily severs productive persons from their livelihood, squanders their talents, ruins their health, strains an already overburdened social security system and drives many elderly persons into poverty and despair -- ageism is as odious as racism or sexism.'"
Then I've got things about the Canadian Charter of Rights and Freedoms. Let me skip that, because it is certainly well known to everybody here. I just say, after having listed the provisions of the act, that in response to the advent of the charter, clauses permitting age discrimination with respect to employment beyond the age of 65 have been removed from the human rights legislation of Quebec, Manitoba, Alberta, New Brunswick, Prince Edward Island, Yukon Territory and the Northwest Territories, but not yet from Nova Scotia, Ontario, British Columbia, Newfoundland and Saskatchewan. As far as I know, this is accurate, but I may be wrong.
The charter supersedes provincial human rights legislation. Thus any provincial law that is inconsistent with the provisions of the charter is "to the extent of the inconsistency, of no force or effect." Mandatory retirement evidently violates section 15(1) of the charter, as does section 10(a) of the Ontario Human Rights Code. That's the one that we're discussing right now. Whether these violations can be demonstrably justified in a free and democratic society, as stipulated in section 1 of the charter, has been addressed by provincial appellate courts. The appeal courts of British Columbia and Nova Scotia ruled that age-based mandatory retirement and limitations in provincial human rights legislation permitting age discrimination against persons 65 and over do violate section 15 of the charter and that such violations are not justified under section 1 of the charter, whereas the Ontario Court of Appeal ruled that they are justified. The conflicting rulings of the Ontario and British Columbia courts of appeal were considered on appeal by the Supreme Court of Canada which, in December 1990, ruled that the violations were justified.
Mandatory retirement has been abolished for Canadian federal civil servants and for all employees in Manitoba, Quebec and New Brunswick. It has also been ruled to be illegal by the appeal courts of British Columbia and Nova Scotia and by a government of Alberta board of inquiry. Surely the time has come for this unjust and arbitrary form of discrimination based on age to be abolished throughout all of Canada.
Let me conclude with a quotation from the 1985 report entitled Equality for All, of the parliamentary committee -- our Parliament -- on equal rights:
"Section 15 of the Charter provides an assurance of equality without discrimination based on a number of factors, including age. In the view of the committee, mandatory retirement is a classic example of denial of equality on improper grounds. It involves the arbitrary treatment of individuals simply because they are members of an identifiable group. Mandatory retirement does not allow for consideration of individual characteristics, even though those caught by the rule are likely to display a wide variety of capabilities relevant to employment. It is an easy way of being selective that is based, in whole or in part, on stereotypical assumptions about the performance of older workers. In the result, it denies individuals equal opportunity to realize the economic benefits, dignity and self-satisfaction that come from being part of the workforce."
The Chair: Thank you. We have about four minutes for each caucus for questions and comments.
Mr Alvin Curling (Scarborough North): Mr Borwein, I just want to congratulate you for a very concise presentation. I too support this direction of abandonment of an arbitrary retirement age. You seem over the years to have taught a lot and counselled a lot. Do you see age being a factor in learning at all, that as people get older, comprehension -- I ask that because at times people bring that up about attention span. Maybe I'm asking for myself.
Dr Borwein: I can't say that in my own experience I've seen age being a factor in competence. One area where I have seen it -- in my own case it's there -- is that hearing seems to go to some extent, and I have the help of a hearing aid. But I honestly cannot say that in any of my colleagues or any people I've come into contact with that age has been a factor. As I quoted, the age 40 to 45 and 45 to 50 seems to be an age where abilities lessen to some extent, or at least become evidently less, than thereafter; if people have been productive and capable up to and beyond the age of 45 and 50 they'll continue to be so beyond 65. In my experience I haven't seen this decrease in ability that's been talked about.
Mr Curling: Because we have a short time, four minutes, my other question is regarding the process of this bill. I want to congratulate my colleague on the other side for bringing forward this bill. I'm sure you understand that this is a private member's bill and may not see the light of day. This may be just an exercise in futility. If this does not go through the process, would you recommend this be a government bill later on? That way we might make sure it reaches reality, because this exercise may not, as I said, see reality.
Dr Borwein: Yes, I would certainly recommend that it become a government bill if this particular exercise ends in futility, as you say. I hope the government takes it up and makes it one of its own and thereafter will be proud of having removed a blot from the legislative record. I'm sure that in time it will be removed. It's one of these things that may take a little time to do, but it can't go on indefinitely that you have discriminating clauses of this sort in human rights legislation.
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Mr Charles Harnick (Willowdale): Very briefly, sir, in your experience of many years at the university teaching level, have you found over the years that a good number of tenured professors retire early in spite of the fact that they have tenure?
Dr Borwein: I found that some have retired early. A lot depends on what sort of flexible pension retirement policies there are. Up to now, we haven't had a particularly easy one at the university I'm at. It hasn't been easy to get. One could retire, but one would lose quite a bit of pension doing so. It's being eased now; it's becoming easier to retire earlier without much loss, and there are people who want to. But as I say, up till now, pension benefits have not been as good as they are now and people have not wanted to retire, for that reason.
Mr Harnick: We had some gentlemen here last week representing the universities generally --
Mr David Winninger (London South): The Council of Ontario Universities. One of them is here today.
Mr Harnick: The Council of Ontario Universities. It was very interesting, because they indicated in their presentation that when early retirement packages were made available, as many people took that early retirement package as there were individuals who wanted to stay on after 65.
It would seem to me that if that's the experience and universities wanted to spend some money but lessen the total cost of salaries for tenured teachers, they could very well continue to make those early retirement packages available, which would continue to open up places for younger teachers -- which answers that argument -- and at the same time permit those who want to stay on the opportunity to stay on. The numbers they presented us were indicative of almost an equal split when that opportunity was available. Does that accord with your experience?
Dr Borwein: That accords with the reading I've done on the matter, but my personal experience at Western is too limited to say that. Basically, that seems to have been the case wherever this has been available: If there's been a flexible early retirement policy, people have availed themselves of it, and on the whole, wherever mandatory retirement has been removed, the actual amount of change, the perturbation in the employment profile, has not been very great.
In the United States they've had six or seven years of it now, where they changed from 65 to 70. There were all sorts of dire warnings about the consequences and they haven't come about. I have reports here indicating that this is the case.
Ms Jenny Carter (Peterborough): Thank you for you very complete and thorough presentation. I really agree with what you're saying, but I just want to be devil's advocate a little bit.
It seems to me that one problem that you can run into with non-mandatory retirement is that although on the whole the people who would want to stay on would probably be valuable members of the faculty, there might be some who would take advantage of that who were not quite so valuable. How do you distinguish? If you have a mandatory retirement age everybody retires, but if you don't, then there's no way in which the good people can be encouraged to stay on some basis while the others just fall away.
Dr Borwein: I guess this is a problem at any age. How do you dissuade a person of 45 who's burnt out and is no longer of any use to the place he's been employed at to leave? You can offer him some sticks and some carrots and suggest that he retire. Most people take that seriously. Now, there may be one or two people whom it will be very difficult to get rid of, but surely, because of a few bad apples, you're not going to throw away the whole barrel. I think there will be difficulties, but I don't think they're major ones as can be seen and experienced elsewhere.
We've had an experimental base now where this has been happening in the United States on a very big scale. These predictions about people hanging on etc just haven't occurred. They haven't been fulfilled. I don't see it as a major problem. As I said, in one or two cases it may be. We have problems with younger people. If a person at 45 is useless, you've got to keep him on for at least another 20 years.
Ms Carter: Are you suggesting any means of dealing with the problem of people who may be burnt out at an earlier age?
Dr Borwein: There have been various reports that suggest there's no necessity to do anything special about people who are kept on over that age.
Here's something that's actually to that point: "It's concluded this problem would not be widespread. The committee also examined the question of whether older faculty might prove to be ineffective teachers and researchers whom university would be unable to dismiss because of tenure. It concluded that this problem would not be widespread. Eliminating mandatory retirement would not pose a threat to tenure."
This is a committee the American Congress asked to report on the tenure position, because they are due to remove mandatory retirement entirely at the end of next year.
In 1986, when mandatory retirement was removed from the rest of the workforce, they gave the universities a seven-year period in which to put their house in order, and this period is coming to an end in 1993. I guess the Congress asked this committee to report to it what the effects would be and whether it should defer again the ending of mandatory retirement. The committee definitely said no, it's not a necessity to, and tenure is no big problem in the universities.
Ms Carter: I have one other question. Sixty-five is now the normal age of retirement, which means that somebody who's had a career that began at the expected age has by then earned a full pension. Would you leave that as it is? There seemed to be some suggestion that maybe that age should be 70.
Dr Borwein: You mean the age of entitlement? I think that's an actuarial problem. Sixty-five may be all right, but the people who will not retire at 65 would presumably leave their pensions on hold until they did retire.
Mr Winninger: Thank you, Dr Borwein, for speaking so persuasively in favour of my bill. Last week Dr George of the Council of Ontario Universities suggested that this kind of legislation which would eliminate mandatory retirement effectively would stifle employment equity initiatives. I wonder if you could comment on that.
Dr Borwein: I'm not sure I actually see the connection. As every study I've seen indicates that the actual overall effect will not be very large, I don't see how it's going to affect employment equity either.
Mr Winninger: The suggestion is that we need to encourage entry to the professions for aboriginal people, disabled people, women and visible minorities, and if you don't remove some of the senior faculty from the universities, those target groups will not gain the same measure of entry they would if you continued with mandatory retirement.
Dr Borwein: All I can do is repeat that, seeing that the net effect of removal of mandatory retirement will be but a small perturbation in the overall work profile, it's not going to have much effect on employment equity or any other sort of employment. If you're only going to change the total numbers of people going in and out by a small fraction, that's not going to have a big effect on employment equity.
The Chair: Professor Borwein, on behalf of the committee, I'd like to thank you for taking the time out this afternoon and coming in and giving us your presentation.
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OLDER WOMEN'S NETWORK
The Chair: I'd like to call forward our next presenters, from the Older Women's Network. Just for the information of the committee, they do have a written presentation they'll be handing out after. Please come forward to the mikes. Help yourselves to the water that's there.
Ms Barbara Greer: I think I'll get through without; I've got a terrible cold.
The Chair: Good afternoon. I just remind you once again that you'll be allowed up to a half-hour for your presentation. The committee would appreciate it if you'd keep it a little briefer so there's time for questions and comments from each of the caucuses. As soon as you're comfortable, could you please identify yourself for the record and then proceed.
Ms Greer: Good afternoon. My name is Barbara Greer. I am the coordinator of advocacy activities for the Older Women's Network of Ontario. I would like to introduce my two colleagues, Nina Herman, coordinator of public relations for the Older Women's Network, and BeverlyJean Brunet, a member of the network who is an action consultant.
The Older Women's Network has, as its chief purpose, to initiate and support public discussion on issues and action relating to the wellbeing of older women and to advocate for their security and independence.
For a number of years the Older Women's Network has been urging governments, at both the federal and provincial levels, to take action to provide for flexible retirement. We have presented briefs, met with members of Parliament and members of provincial Parliament, provincial cabinet members and policy advisers. We have had our position endorsed by the Canadian Advisory Council on the Status of Women and the Ontario Advisory Council on Women's Issues.
Government bodies have been calling for a ban on mandatory retirement for years. They include a special Senate committee on retirement age policies in 1979, the parliamentary task force on pension reform in 1983, the House of Commons subcommittee on equality rights in 1985 and the all-party Commons committee on human rights in 1988. Yet the federal government has taken no action.
The Ontario Advisory Council on Senior Citizens called for a redefinition of age in the Human Rights Code as far back as 1981. The Canadian Advisory Council on Aging, the national seniors' organization known as One Voice, the Canadian University Women's Clubs and the Ontario Federation of Business and Professional Women's Clubs are among the organizations which oppose mandatory retirement.
Nevertheless, the Supreme Court of Canada, in its ruling of December 1990 permitting mandatory retirement policies -- although the court agreed they were discriminatory -- shifted the issue back to the political arena and to provincial governments which had not yet banned compulsory retirement practices.
It is useful to look at the jurisdictions where mandatory retirement has been abolished. New Brunswick was the first in 1973. Manitoba amended its Human Rights Code in 1974. Quebec enacted regulations to ban mandatory retirement in 1983. The report of the Ontario Task Force on Mandatory Retirement entitled Fairness and Flexibility in Retiring from Work, published in December 1987, found that the dire predictions which had been made in these provinces were not borne out in actual practice. In the last five years other provinces have acted to end mandatory retirement, but Ontario lags behind.
The Ontario task force observed that forced retirement practices "are inconsistent with major trends developing in Ontario and across Canada and appear sadly out of step with the growing concern and recognition of individual rights."
The Older Women's Network is particularly concerned with the impact of these practices on women. You can understand how appreciative we were when Mr Winninger introduced his bill. Thank you, Mr Winninger, for your sympathetic understanding. We wish to thank the committee for the opportunity to appear before you today.
I turn now to Nina Herman.
Ms Nina Herman: We have received the transcript of the committee's meeting of November 23, and I wish to express our appreciation of Mr Winninger's recognition that mandatory retirement has a particularly adverse effect on women, although of course it's unfair to men as well. We also note that Mr Curling and Mr Mills, who was here last time, supported Mr Winninger's position. We thank them too.
We want to talk today about ordinary women, ordinary workers. Most of the arguments you've heard have been from faculty associations. The Supreme Court's cases dealt mainly with faculty people and we respect their position, but we are concerned about women who work in offices, who work in health care systems and who work in libraries, and these are ordinary working women.
Why does forced retirement disadvantage older women particularly? In a nutshell, it's because women have fewer resources to fall back upon when they leave the workforce than men do. What are the reasons for this discrepancy? I will begin to outline them and Ms Brunet will continue.
First of all, we have to look at the discontinuous history of participation in the workforce by women who are 55 years of age and over today.
For women who have been mothers raising families, thousands of them -- those who were in the workforce at all -- worked sporadically in part-time or low-paying jobs, taking time out to raise children, several years at a time, and earning little income and very few pension credits. In some occupations, women who are old today were told they had to leave the workforce if they got married. You've heard of that way back, and if you became pregnant, out you went, again forfeiting pension contributions.
Never-married women may also have had to drop out of the workforce to act as care givers to family members and they were only able to re-enter after their elderly relatives died. They receive no financial recognition for their years of care giving, and the poorly paid jobs they get enable them only to hover around the poverty line. They too have not been able to build up pension benefits.
Statistics show that even today, of women in Canada aged 45 to 64, 36% have had work interruptions exceeding 10 years, and for older women it's been longer than that. That's the first reason.
Secondly, it's well known that there is a great discrepancy between women's earnings and men's earnings. Most working women who are now in the older generation earned about 60 cents to the men's dollar while they worked because they were often relegated to low-paying jobs, to "women's jobs" in the women's ghetto, traditionally low-paying and because, even when they did work of equal value, they didn't make the same amount of money. Even today, women 45 and over make 62 cents to the men's dollar, so it hasn't changed very much for older women in full-time work. I'm not averaging in part-time work.
Few women worked for companies that provided them with private pensions. Even today, only 27% of women participate in private pension plans.
Thirdly, most women of the older generation were homemakers for most of their lives. They met the expectation of the society of their day that when you get married, you stay home and care for your family. That means they became completely financially dependent on their husbands. They built up no savings for themselves, no pension benefits for themselves. When their marriages end through widowhood or divorce, many find themselves impoverished. They may attempt to enter the workforce for the first time in their 50s or 60s. That's the second group of women I want to talk about: those who are just entering or re-entering the workforce after 40 years, in their 50s or 60s.
Do you know how difficult it is for an older woman to get a job? Agism is rampant in our society. I don't know if any of you saw the television show last night. They had a segment of a really working-class woman who'd only been having menial jobs. Her company closed, as many companies are these days. She was supporting an invalid husband who has Parkinson's disease, giving him care. She was the sole breadwinner. She could not get another job, even in a meat-packing plant handling entrails. She was too old for that.
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If you're unskilled or your skills are rusty, nobody wants to train you. But even women who have current experience and up-to-date qualifications find themselves bypassed for younger women when their jobs are lost because of cutbacks or company closures in this age of recession. So imagine how difficult it is if you've been out of the workforce for a long time.
Women who separate or divorce may be in even worse positions than widows. The number of breakdowns in long-term marriages is increasing. Did you know that more husbands abandon their wives between their 50th and 60th birthdays than at any other time in their lives? Judges these days allow for women to receive support from their husbands for a maximum of two to three years, and then they're supposed to go out and support themselves, when they're 59 or 60.
If she's unsuccessful in finding work -- I'm talking about the divorced or separated woman now -- she's not even eligible to apply for assistance under a program such as the federal spouse's allowance program, which provides financial help to low-income women if they are widows or married to old age pensioners, aged 60 to 64, but denies it to separated and divorced women.
We have been advised by the federal government, "Well, she can go on welfare," rather than change that act. Do you know how demeaning it is for many women to apply for welfare? Do you know what welfare pays? In the winter of 1991, a single woman living in Toronto received a maximum of $595 a month, or $7,146 a year, in welfare payments. That was at a time when the Social Planning Council of Metropolitan Toronto said that the poverty line for a single person living in Metro was $14,882. So welfare is paying about 48% of the poverty line. That's not good enough.
Let's say some miracle happens and our widowed, separated, divorced or never-married woman who is attempting to enter or re-enter the workforce after many years finds a full-time job which pays a decent wage rather than the part-time, temporary or contract work that most people are relegated to. If her job is with an employer with a mandatory retirement policy, such as the province of Ontario, she is faced with being forced out of her job at the age of 65, when she must endure the indignity of not being able to afford the necessities or amenities of life, a job that she has maybe just got when she's 59 or 60 if she's very lucky.
I'm sure you know the statistics of the increased longevity of women's lives, as has been mentioned by the previous presenter. Women who reach the age of 65 today are very likely to live to 85. How, I ask you, is she going to earn enough in six or seven years to live on for the next 20 years?
There are additional reasons why working women may face a life of poverty if they are forced to retire, and BeverlyJean Brunet will continue with this presentation.
Ms BeverlyJean Brunet: I'd like first to talk about older women and pensions. Many older women have not experienced the protection of union contracts. As a result, these women do not have access to private pension plans in their places of work and therefore receive no private pension benefits.
According to the 1990 document of the National Council of Welfare, Women and Poverty Revisited, only 57% of the women who retired in 1989 received any Canada pension plan benefits at all. For these women, because of a work history of low wages, the average annual payment was almost $2,200 less than the average payment for men who retired in the same year.
In her book, Whose Money Is It Anyway?, Ann Finlayson pointed out that the main beneficiaries of the Canada pension plan are men who retire on full pensions, just as the main beneficiaries of the trend towards early retirement are men who can afford to retire early. While they are collecting their Canada pension plan benefits, it is the increasing number of women entering the workforce who are paying the premium for these pensions.
Concurrently, most women pay a higher percentage of their salaries into CPP and they remain at work many years after male early retirees because they cannot afford to retire. The plan, which was designed to transfer wealth from younger contributors to the elderly, is also transferring wealth from women to men. Women are both the rescuers and the victims of this system.
Older women are also concerned about the break in universality of the old age pension. We worry about how much longer this formerly dependable small amount of money will be available to those who need it.
In summary of the reasons why older women are at quite a loss because of mandatory retirement age, I'd like to say that because of the discontinuity of our work history, our entry or re-entry into the labour force during our mature years and the lower wages we receive while working for pay, women who are now old have been unable to save for our years of retirement from the workforce. However, we are held responsible for the systemic discrimination practised against us, and as a result, many older women suffer their poverty in silence.
We are here today to speak in support of the private member's bill. We believe the way to lift the burden of mandatory retirement is to remove the upper age limit from the Human Rights Code. We understand, however, that there are arguments against this bill, and we would like to briefly address three of these.
The first argument one frequently hears is that if there is no mandatory retirement, people will just keep on working. In Canada, given adequate income, most blue-collar workers and middle-management people will choose retirement. Professionals and others in jobs which involve commitment and fulfilment in the work role will choose to continue to work.
In the United States, the Age Discrimination in Employment Act was passed in 1967. It removed the maximum age limit for all employees in the private sector and state and local governments. Since the passage of this act, it has been discovered that many people opt for early retirement. It is the highly professional and the poor who opt for working beyond the conventionally accepted age of 65, and only 10% of these two groups choose to do so.
The second argument one hears very often is that if there is no mandatory retirement, older people, by working, will prevent young people from entering the workforce. A United States Department of Labour report of 1982 indicated that most people choose to retire before age 65, promotion of younger workers continues and the rate of youth employment has not been affected. As well, because of the smaller numbers of 15- to 24-year-olds in the population, the Ontario Ministry of Skills Development in its report, Ontario's Labour Market: Long-Term Trends and Issues in the 1990s, predicted that during the current decade there will be zero growth in the number of young people in the labour force.
The third argument one hears very often is that as people age, their abilities decline. According to research, a retardation of reflex reaction time can be noticed when people are in their 40s and other physical signs of slowing down soon follow. However, for the vast majority of people, mental and intellectual functioning remain intact until people are in their 90s.
As well, older people have the knowledge of their experience to compensate for diminishing physical activity. They do not have to resort to the trial and error method in order to complete a task. Furthermore, older people tend to have fewer extraneous demands on their attention and are able to focus on their work for longer periods of time. Indeed, statistical studies indicate that older workers have a very good record of getting to work on time and of taking fewer sick days.
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In a study done in the United States by Robert Harootyan on older workers and technology, three important results came from his research:
(1) Workers are expected to "fit" the work environment, rather than the other way around. This has implications for many other people besides older people.
(2) Workers, particularly women, of 35 years of age or older are overlooked by their employers for training and retraining opportunities in the workplace. One may ask, do people who are in their 60s appear to be redundant because they have not had the opportunities to keep up to date with what is going on in their workplaces, rather than the assumption that's usually made?
(3) Older workers take longer to learn new technologies, but once having learned to use them, are more productive and efficient.
In conclusion, the Older Women's Network received a copy of the letter written on April 24, 1991, to Premier Bob Rae by the Ontario Advisory Council on Women's Issues, and we would like to quote two very brief paragraphs:
"The Ontario Advisory Council on Women's Issues joins the Older Women's Network in their call for amendments to the Ontario Human Rights Code to remove the upper age limit, and for the introduction of a flexible retirement age.
"We urge you to remain true to your commitment to improve the status of women and amend the OHRC so that aging women are protected from discrimination."
We agree with what Bob Rae told us in 1989, that pension reform and a guaranteed annual income are better solutions to the problem of poverty in old age. These are, in light of the present recession and the federal government's fiscal policy, long-term solutions.
We are living in the here and now and believe that rather than sending "Happy Instant Poverty" greetings to the women of this province on their 65th birthdays, the Parliament of Ontario should support Mr Winninger's private member's bill and vote in favour of lifting the upper age limit in the Ontario Human Rights Code.
The Chair: Thank you. We have time for one brief question each.
Mr Curling: First, thank you very much for your presentation. On my brief question, maybe Ms Brunet may be able to help me on this. Your memory and your experience maybe are better for informing me of why it is that after, as you said, this issue has been around and presented from 1981, it has not really broken through the ice or broken through the barriers of having government pay enough attention to amending the Human Rights Code so that this discrimination would be out. Is there anything that comes to mind to you, as the groups or advocates for this cause who come forward, why government has not advanced that?
The (b) part of that question, which I hope you can find, is a supplementary. If this fails through the private member's bill -- and I asked the question before -- would you be coming forward again and pushing the government to make it a government bill so that it should amend the Human Rights Code on a government bill? Because this, I know, will die its own death as time goes on.
Ms Brunet: I'll start and anyone else can add, please. To start with the second part of your question first, the Older Women's Network has been pressing for a flexible retirement age for a number of years now. If this private member's bill as it is should not go through, we will be disheartened but not discouraged to the point that we will cease pressuring the government to have this altered.
There are a number of groups, and the speaker who spoke first mentioned one of them. Apparently, it is convenient for the personnel people in large organizations to have the cutoff date of 65.
Also, unions fought during their early history for the opportunity for workers not to drop in their tracks, and the historical momentum continues there. There are individual union people who are beginning to look now at this issue rather than turning a blind eye to it, as they have for so long. When I first started to speak to representatives of unions, they gave me the impression that they did not want to talk about this at all, because they had worked so hard to get mandatory retirement that they didn't want to relinquish it, but I see that not continuing.
Ms Greer: The need for flexible retirement is perhaps more of a women's issue than we quite realize or than the world quite realizes, and women's issues have tended not to be on the agenda particularly.
Mr Harnick: It strikes me, as I've listened to people come before this committee, that the more institutionalized the group that comes here, the more likely they are to be opposing the idea of permitting people to work beyond the age of 65. As you say, unions fought long and hard to permit people the opportunity to retire early on decent pensions, and we still see that in terms of what unions want to do for their membership.
Going through the agenda, I see that the University of Toronto's going to be here on Monday. My bet would be that they're going to be fully in favour of mandatory retirement. I suspect the Ontario Confederation of University Faculty Associations -- it's going to be here on Tuesday -- is going to be in favour of mandatory retirement. My bet is that the Canadian Manufacturers' Association is going to be in favour of mandatory retirement. I could be wrong. But it seems to me that the more organized the group, the more institutionalized the group is, the more likely it is to favour mandatory retirement.
In terms of your dealing with these groups to show the other side of the story -- you know, what happens to those who haven't had the opportunity to work to the rule of 90 so that you can retire as a teacher when you're 55 if you've been teaching for 35 years and you can retire early; or if you're an auto worker and you've put in the number of years to draw your full pension. I think those places, those institutions, have not really understood the plight of the unorganized worker, the person who makes up 65% of the labour force, as opposed to 35%. What has been your experience in dealing with these, what I call institutions, in terms of trying to have them recognize your plight?
Ms Herman: I don't know that we have had much direct contact with these larger institutions, such as the Canadian Manufacturers' Association, and as far as the unions are concerned, we perhaps have not done as much work with them as we should, but BeverlyJean has mentioned that we have made contacts with certain women's caucuses within the unions that I think are beginning to, as she indicated, look at the position of unorganized women and how this affects them.
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Ms Zanana L. Akande (St Andrew-St Patrick): Thank you for your presentation. It was very comprehensive, and it pulled together so many things so many of us within the women's movement have been dealing with for so long. I do appreciate it; it's nice to have it reaffirmed.
One of the things that strikes me again and again in the presentations as I've been hearing them is that when you listen to men speak about the issue it becomes one of personal or more idealistic concern. When you listen to women speak about the issue, especially older women, it becomes one of practicality, one of necessity, one where need is emphasized rather than just a desire to work. Would I be correct in describing it that way?
Do you feel that there should be perhaps a response that allows for the changes in society that are current today, that cause a situation of need today for older women, and do not necessarily allow for a total change in the imposition of age for mandatory retirement; for example, some kind of accommodation which would allow rights to older women that would not be generalized to allow for all?
Ms Herman: This is something we haven't discussed, but I don't think we would favour something that would discriminate on the basis of gender. It would be discriminatory, and I don't think we want something that would be discriminatory towards men who need to continue to remain in the workforce.
We did not comment on the other reasons why women might want to stay in the workforce because we didn't want to take the time and because we felt the economic reasons were the most important. But there also are many women who derive psychological benefit from remaining in the workforce because their identity -- these would be more highly trained women -- is tied up with their work role, with the social life with their colleagues and because they want to feel they still do have skills to contribute and want to feel in the mainstream of life. Psychologically it hurts many women too to be forced out of the workforce.
Ms Akande: I appreciate your saying that, because I did not want to leave with the impression that there was --
Interjection.
The Chair: Thank you, Ms Akande. Ms Greer, Ms Herman and Ms Brunet, on behalf of this committee, I'd like to thank you for taking the time out this afternoon and coming to give us your presentation.
EDWIN DANIEL
The Chair: At this time I'd like to call forward our next presenter, Professor Daniel from McMaster University. Good afternoon. Once again a reminder: You'll be allowed up to a half-hour for your presentation; the committee would appreciate it if you'd keep your remarks brief to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, could you please identify yourself for the record and proceed.
Dr Edwin Daniel: My name is Edwin Daniel, and I'm a professor at McMaster University. This is the first time I've ever been in Queen's Park, in this building, and I'm here for a different kind of reason than the powerful reasons you just heard from the last three people who appeared before this committee.
I've been very lucky and I've been very fortunate in my career, because I'm now, at age 67, still an active scientist, for the moment not retired, but facing retirement within the year. So I want to give another perhaps human aspect of why mandatory retirement is illogical and loses people who are valuable for the future of this country and to the economy of the country.
I've summarized in my little statement why I believe I'm still an effective educator and scientist and I don't intend to pursue that, except to say that I think the main reason I am successful and still active is because I have enjoyed every minute of the 40 years I've been teaching and doing research.
But the point that has brought me here, the reason I'm here, is that I believe it is time to consider mandatory retirement as outmoded and to consider bringing forward a flexible retirement plan which will deal with not only the problem of women late in the workforce but also professionals like myself who can continue to be active and effective as they get beyond age 65, and at any particular age may or may not need to retire.
Let me put it this way: There is no biological basis for retirement at age 65 or any other particular age. Individuals vary. Some need to retire perhaps at age 50, or at least to change course; others may not need to change course even at age 80. But it's an individual matter determined by health, by motivation and perhaps by one's good health and ability to continue.
I would have liked to briefly consider some of the arguments for mandatory retirement, but I've heard them dealt with so fully by the speakers who've been here before me that I'll simply summarize it very briefly. There is no evidence based on recent data from the US that abolishing mandatory retirement leads to a sudden persistence in employment of many individuals who are merely marking time. In fact, the average age of retirement of university professors has not changed since the lifting of the early mandatory retirement there several years ago. I predict that it will not change in Ontario should that be the case.
I've been told by some of my administrative leaders that mandatory retirement is necessary to allow young people to take the place of older scientists like myself. I refute that statement, because I have already trained 88 scientists who are now active in Canada and the US and elsewhere in the world, and I still have seven graduate students. I think perhaps my biggest contribution is that when young people start out in the profession, it's very hard in these times to get started, to get a research grant, to begin work, to establish oneself and to achieve tenure, and it's best done -- and I think I'm pretty good at helping do it -- when you come into a place where there's somebody who gives you support and helps you in all the necessary ways to get started. I've done that for many people and I'm continuing to do that. I will not be in a position to do that should I be compelled to retire and to give up the science and education I love very much.
It seems to me that the real arguments for mandatory retirement are entirely bureaucratic. They have no basis in anything other than the desire to have simple rules, the ability to force people out at a certain age irrespective of ability or motivation. It seems to me that as the population ages, if we continue to have mandatory retirement, more and more people will have to be supported by pensions. We have to face the fact that people who are still productive and capable of being productive have to continue in the workforce, have to continue to be economically productive and producing material things and useful things for the country rather than being compelled to live, in a sense, on their past activities.
In the long run, not only for the good of those of us who are either needful or desirous of continuing to work but for the economic good of the country, we need to continue to allow people to work beyond any mandatory date as long as they are productive and effective.
I believe in flexible retirement. I believe that people who are no longer interested or motivated to do their work should be given humane options to leave it and to change careers. But for those who are active, motivated and effective, mandatory retirement seems to be a bureaucratic and poor solution.
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Mr Curling: Thank you very much, professor, for making your presentation. Welcome to the building. The first time I entered here was when I was elected, after passing by every year for years. I'm sure that your contribution here will resound through the halls long after you're gone. I'll comment rather than asking you a question. I think this is a human rights issue. Debating it or sitting through these committees, I say to myself that I don't know why we're even debating trying to change a law that is so discriminatory. Any law or any society that locks people out because of religion, sex, race or age is discriminatory.
The economic issue is an issue completely apart from that. Productivity or competence is another issue, and that itself can easily be assessed; if someone is not competent, whether 19, 20, 25 or 75, they should be dealt with on that basis. Of course, race or religion can also be dealt with if it conflicts with one's belief, if they're doing something; that's another issue.
But to shut people out because of age is something that -- I would say it's a waste of time of Parliament or yourself coming here trying to change that. I just want to commend you for coming here. This being a private member's bill, it will not see the light of day, and I hope the government will take it up immediately and say, "We will put it in as a government bill." I'm right beside Mr Winninger and yourself to have that changed.
Mr Gary Malkowski (York East): Thank you, professor, for your presentation. It was very impressive, and I'm certainly impressed with the work you've been doing. Obviously your age has not had an impact on that work. I'm wondering whether in your experience, or maybe if you know other college or university professors, other people have been forced to take early retirement not only because of age but because of disability. Do you have any comments on that?
Dr Daniel: Early retirement has become a fashionable activity in universities these days because of the restructuring necessary in financial constraints. I'm not sure that early retirement, unless properly thought out, is a very good solution for productive people. I know some professors who've taken early retirement and then gone on to take another job in another place. Early retirement is necessary and useful, but I don't believe it should be applied in a careless way to solve economic problems. There have been cases where it's been very valuable, but also cases where it's been a serious mistake.
Flexible retirement needs thought. It requires new institutional arrangements, but they will never happen until flexible retirement becomes the norm rather than the exception.
Mr Malkowski: If I can just follow that up, you mentioned it's a bureaucratic problem. Can you give me an example of what you mean by "bureaucratic systemic problem?"
Dr Daniel: People will say, if you don't retire, what happens with your pension? Do you continue contributing to your pension fund? Are you compelled in some cases to take your pension fund? I have to take Canada pension because I'm over 65, yet I immediately lose this through income tax. So that's not an intelligent solution. It would be better to hold off giving me the Canada pension as long as I'm still actively employed.
There are also questions about contributions to my pension plan: Should I continue to contribute? Let's say there are some of us who contribute above what's called a DNR max. What should we do if we continue to be employed and the chief income is of that sort?
There are many small problems, each of which could be solved if attacked individually and if there was an incentive to attack it, but so far they are simply ignored.
Mr Winninger: Professor Daniel, thank you for coming here today and sharing your views with our committee. Unlike Mr Curling, who thinks this bill will never see the light of day, I prefer to think that in our enlightened government all points of view should be heard, and those that win the day will determine whether or not this bill should advance to third reading.
In your statement and summary you show that you have been very active in university affairs and in fact were president of the McMaster University Faculty Association last year, so I gather that you have considerable knowledge of faculty positions. I'm just wondering whether there are not professors you know of who may be women or new Canadians who, unlike you, have just started their careers late in life and may be even more unjustly deprived of the right to earn a living after age 65 or to carry on with their productive research or educational activities.
Dr Daniel: What you say is entirely true. There are many women who are -- let me say it bluntly -- often in part-time positions in the university. They don't have tenure and they don't have comparable salaries, and for those people, for those women in particular, the necessity of retiring at age 65, as you heard previously, can be disastrous because they have not accumulated enough income to survive on a pension. In my case that's not the problem; in my case the problem is that I am active and wish to continue to be active.
Let me correct one thing that was said earlier. The Ontario Confederation of University Faculty Associations is not in favour of mandatory retirement. It is a mistake to believe that. In fact, I'm here at the suggestion of OCUFA, although I'm here as an individual.
Mr Winninger: The gentleman sitting behind you may disagree. We heard a different point of view expressed last week by the Council of Ontario Universities.
The Chair: Professor Daniel, on behalf of this committee I'd like to thank you for taking the time out this afternoon and giving us your presentation.
Seeing no further business before this committee, the committee stands adjourned until after routine proceedings on Monday, December 7.
The committee adjourned at 1708.