FTR Now
Legislature Expresses Interest in Government Presenting Mandatory Retirement Legislation for Firefighters
Date: March 15, 2011
On March 10, 2011, a private member’s motion calling upon the Ontario government to introduce legislation allowing for the mandatory retirement of firefighters involved in fire suppression duties at age 60 was passed in the Legislature. While there is no indication at this time as to whether the government will propose such legislation, the motion may indicate general support in the House for legislative action. It further raises a number of questions that surround this complex issue, some of which are discussed below.
THE MOTION
During a session allocated to private members’ public business, Liberal MPP Michael Brown (Algoma-Manitoulin) introduced the following motion:
Several individual private members from all three parties expressed support for the motion during subsequent debate, and it was ultimately passed unanimously by the members present in the House, 36-0.
It remains to be seen whether the government will introduce mandatory retirement legislation in response to this motion. However, the motion itself raises a number of important questions that would have to be addressed by any such initiative.
DEFINITION OF “FIREFIGHTERS”
As noted, the motion addresses mandatory retirement legislation for “firefighters who are involved in fire suppression activities”. However, there is no indication at this time as to whether “firefighters” means full-time firefighters within a particular municipality, or whether volunteer firefighters are also intended to be captured by such a legislative initiative. This issue is particularly significant in smaller municipalities that rely on volunteer firefighters. If all volunteer firefighters over the age of 60 were forced to retire, it could have an impact upon a municipality’s ability to staff its fire department. This would be particularly true in those municipalities that rely on retired full-time firefighters who provide firefighting support.
SCOPE OF FIRE SUPPRESSION ACTIVITIES?
The “fire suppression activities” intended to be captured by this motion are not expressly identified in the formal motion or in the debates. Accordingly, it is unclear as to whether such “activities” include training, prevention or communication activities. The scope of the affected activities could have a significant impact on transfer or bumping rights under various collective agreements, since presumably “activities” not falling within fire suppression would not be subject to mandatory retirement at age 60.
NON-BARGAINING UNIT EMPLOYEES
It is similarly unclear as to whether and to what extent mandatory retirement legislation would apply to higher ranked employees within the fire suppression division, including Platoon Chiefs and District Chiefs. Furthermore, in smaller municipalities it is not uncommon for management—including the Deputy Chief of Operations and the Fire Chief—to be involved in active fire suppression duties. Given that the basis for this proposed change is the “health and safety risks” faced by the suppression firefighters, depending on the size of the department, and the personal inclination of the individual in question, many officers (both within the Association and outside the Association) may, or may not, participate in “fire suppression activities”.
PENSION RIGHTS
There are several municipalities in Ontario with negotiated normal retirement ages above the age of 60, including the City of Toronto. One concern raised during debate was the possibility of firefighters with less than the requisite years of pensionable service being forced to retire at 60 (i.e. before accruing enough service to receive a full pension). Forced retirement under these circumstances could substantially interfere with individual rights and choices associated with retirement. However, despite being raised in debate, the issue was not clarified prior to the motion being passed.
IMPLICATIONS OF THE MOTION
One key objective of this motion was an expressed intention to reduce the number of legal disputes that commonly arise between parties around the issue of retirement. However, it is far from certain that any proposed mandatory retirement legislation in this area, whether introduced by the government or another party, would unequivocally resolve matters. Historically, these types of legislative initiatives have generated significant legal disputes in a variety of different legal forums as employers, unions and employees challenge the constitutional validity of government action—be it the legislation itself, or its application or non-application to a particular individual in a particular case.
Moreover, as the discussion above suggests, mandatory retirement in respect of firefighters raises a variety of complex, sector-specific issues, which may further affect related issues including training, evaluation and safety standards in general.
At this time, the government has not introduced mandatory retirement legislation in response to this motion, nor has it indicated its intention to do so. It is possible that another party may introduce private member legislation on this point. We are monitoring the issue closely, and will provide legislative updates, if any, on our Legislative Blog.
If you have questions regarding the motion, contact John Saunders at 416.864.7247, Mark Mason at 416.864.7280, Michael Kennedy at 416.864.7305 or your regular Hicks Morley lawyer.
The articles in this FTR Now provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
