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Senior truckers can now challenge annual road test thanks to labour bill

NIAGARA-ON-THE-LAKE, Ont. - Ontario's senior truckers could legally challenge the requirement to be road tested once a year as of 65 now that the Ministry of Labour is eliminating mandatory retirement...

NIAGARA-ON-THE-LAKE, Ont. – Ontario’s senior truckers could legally challenge the requirement to be road tested once a year as of 65 now that the Ministry of Labour is eliminating mandatory retirement, carriers learned recently, during a breakfast seminar at the Private Motor Truck Council’s annual general meeting and conference held June 17 and 18 in Niagara-on-the-Lake.

“The way the Ontario government is eliminating mandatory retirement may well open the way for a court challenge of mandatory annual testing once drivers turn 65,” said labour lawyer Christopher Andree, of the firm Crawford, Chondon & Andree LLP, during a breakfast speech to conference delegates.

Andree explained the Ontario Ministry of Labour eliminated mandatory retirement at 65 by introducing legislation (Bill 211) which simply alters a section of the Ontario Human Rights Code, which used to define age as “18 years or more and less than 65 years.”

The old definition of age made it easy for employers to get rid of an underperforming employee at 65 or older without having to prove cause.

They could, in essence, legally discriminate against employees on the basis of age, because 65 year olds and older weren’t protected under the code.

The same code allowed the Ontario Ministry of Transportation to insist drivers aged 65 and over perform annual on-road tests to maintain their commercial licences, even though drivers under 65 weren’t required to, a fact that has provoked much outcry among aging truck drivers.

But that’s all changed thanks to Bill 211, which eliminates the age cap of 65 in the Ontario Human Rights code. Subsection 10 (1) of the code now defines age as “18 years or more.”

Which means that anyone aged 65 or older is entitled to just as much protection as those under 65. And which also means commercial drivers can challenge the MTO’s age-based requirement under Ontario’s own Human Rights Code, said Andree.

“It’s funny because if you look at the legislation it’s only about two pages long,” he said. “But it will have a huge effect in terms of challenges.”

With experienced drivers in constant demand, and insurance premiums high, the industry is far from reluctant to employ older drivers. (In fact, the average age of drivers is 45, according to the Canadian Trucking Human Resources Council.)

But they have been discouraged from doing so, at times, because of the annual road test requirement, which in turn discouraged drivers from maintaining their commercial licences.

For older drivers, especially part-time or occasional workers, annual road testing means renting or borrowing a truck for the day, during which they aren’t making any money themselves.

Never mind the fear and/or humiliation of not passing a test being administered (possibly by someone with less experience than them or even no CDL at all) after years of accident free driving, and then being taken off the road immediately, pending a passing grade.

Indeed, older drivers have oft stated in the pages of Truck News and elsewhere, that they felt they were being unjustly discriminated against.

Now, thanks to the new labour law, senior truck drivers will be able to make their case in court.

Still the bill will only fully kick in one year after second and third readings and a vote in Parliament, followed by Royal Assent. (Since the House rose June 13, it’s unlikely any of that will happen before this fall. And if passed as is, Bill 211 provides for yet another one-year transition period to allow workplaces to prepare for the change.)

Which gives opponents of the MTO’s age-based testing requirements for commercial drivers plenty of time to start calling lawyers.

“There’s certainly the potential for those sorts of things (constitutional challenges, class action suits, etc.) based on age discrimination,” admitted Andree. But every silver lining has a cloud, a fact Andree was quick to point out. For carriers, not being able to get rid of someone at age 65 could be a bad thing, he said.

“It depends on your point of view,” he said. “If you have an employee who’s been under performing and you want to just let him or her ride out their final days until they retire, it’s going to be a lot harder. You won’t just be able to say goodbye when they turn 65. And you’ll even have trouble letting them go if they claim that you’re only doing it because of their age. So you’ll have to spend a lot more time accumulating the information and documentation you need to prove you’re firing them with cause. It will be a lot less graceful and a lot uglier.”

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