TORONTO — Football coaching legend Vince Lombardi used to say “The harder you work, the harder it is to surrender.”

Older truckers should keep that in mind as a new Ontario law that ends the practice of mandatory retirement at age 65 also throws an ironic wrench into the government’s own policy of annual on-road testing of senior truck drivers.

The new retirement law — an amendment to Ontario’s Human Rights Code, which passed final reading in the legislature in December — lets employees decide when to call it a career. Previously, workplaces could force retirement through collective agreements or company policies even if an employee wanted to keep working.

The law to retest older drivers may soon be scrapped.
And the government has itself to thank.

However, when the legislation takes effect at the end of 2006, the government may find itself in court defending an Ontariocentric, age-based rule that targets commercial drivers over 65 for annual medical and practical driving tests. That policy — on the books in Ontario since classified licences were introduced in 1977 — might be nearing its end, some labour law experts predict.

“If you can no longer discriminate against people who are over 65, than how can you justify arbitrarily picking the age of 65 as the date after which professional drivers should be tested?” says Christopher Andree, an attorney at Lawrence, Lawrence, Stevenson LLP in Brampton, Ont. “I believe [mandatory testing] will be a breach of the Human Rights Code when the [mandatory retirement] change takes effect.”

A court challenge by truckers against annual testing would hurl the conflicting pieces of legislation on a collision course, Andree suggests. “There’s lots of case law out there that says the Human Rights Code is quasi-constitutional,” he tells Today’s Trucking, “meaning it takes precedence over things like the regulation that allows for mandatory driver testing.”

Jim Rylance, a 75-year-old driver from Woodstock, Ont., is one of a handful of the province’s 3,000 senior truckers who have spent years fighting the government’s testing policy. He wonders, if the government faces tough sledding in justifying the rule before a judge or human rights commission, why doesn’t it simply “fold up its cards and go home,” saving truckers the time and expense of a challenge they would otherwise win.

For the record, Rylance doesn’t totally oppose retesting. But he does question the arbitrary age chosen for truckers and the distinction between AZ licence holders and car drivers, who don’t have to be tested until age 80.

Andree doesn’t think on-road testing based on age will be categorically eliminated in Ontario — only that the goalposts will likely be moved.

“It depends on where the line is drawn of when it’s reasonable to do testing,” he says. “What’s likely going to happen is somebody is going to challenge this by saying 65 — or 80, for that matter — is an arbitrary date. So, is it going to be somewhere between 65 and 80? Is it going to be every year? Well, someone smarter than you or I is likely going to have to come up with that conclusion.

“But the idea that a driver doesn’t want to be tested at all, well, the trucking industry has enough problems.”

Both Rylance and Gerber don’t know many truckers that’ll argue with that. They say many independent drivers simply want a fairer system that doesn’t arbitrarily require them losing at the very least a day’s payload every single year.

While the anti-mandatory retirement amendment is good news for senior workers in other industries, older truckers have already gotten used to working past 65 with industry’s consent. Many couldn’t afford to retire even if they wanted to, including Rylance.

At 75, Rylance doesn’t know for sure if he’ll be on the front lines of a court challenge against the testing rule. Or perhaps he just doesn’t want to show all his cards just yet.

What he does know is he’ll still be involved in one way or another. “Even if I do retire, or if they don’t give me a licence, I’m certainly not giving up on this,” he says. “I’ve put too much effort in to quit now.”

— Read the complete story in the current Jan-Feb issue of Today’s Trucking