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Mandatory retirement

It’s not exactly Freedom 55, but it’s close. Proposed mandatory retirement for suppression firefighters in Ontario is also vexing and frustrating for fire-service leaders who are struggling to understand its implications.

Proposed legislation in Ontario does not affect volunteer firefighters but fire-service leaders say volunteers should be treated the same as career firefighters when it comes to health and safety issues.

For most career departments, Bill 181 is, effectively, an extension of collective agreements that stipulate a retirement age of 60. According to pension plan statistics of the Ontario Professional Firefighters Association (OPFFA), most career firefighters retire well before that, at around age 57.

But the Ontario Association of Fire Chiefs is on the fence about mandatory retirement; it recognizes the rigours of the job and the impact on older members, and it supports the health and safety aspect of the proposed legislation. It says all firefighters should be treated equally in terms of health and safety, therefore, if working beyond age 60 is deemed by provincial legislation to be a health and safety risk for career firefighters, then it’s also a risk for volunteer – or paid, on-call – firefighters who comprise the bulk of the province’s fire services.

The flipside, says the OAFC, is that extending mandatory retirement to volunteers could wipe out a significant chunk of fire-service expertise and leave departments that struggle with recruitment and retention even worse off.

While the issue smoulders in Ontario, mandatory retirement, like the 24-hour shift, is likely to be closely watched by fire services in other provinces.

Municipal officials in Otonabee-South Monaghan, a township in southeastern Ontario’s Peterborough County, say extending mandatory retirement to volunteer departments would, over five years, affect 17.5 per cent of its fire service and force out the fire chief, three firefighters, two captains, one captain-fire prevention-training officer and two district chiefs.

While no group or association is pushing to extend mandatory retirement to volunteers until there is more clarity on the issue, there’s considerable frustration over equal treatment of firefighters by the province, or the lack thereof. The OAFC successfully lobbied the Liberal government to extend presumptive cancer legislation to volunteer firefighters in 2010 and it says the retirement bill raises a fistful of issues that need far more consideration before it becomes law.

“I can’t give you a clear-cut answer,” says OAFC executive director Barry Malmsten. “It’s a thorny issue and it’s not one that should be driven in a hurry. It has wide-ranging public-policy implications that will become even more serious in the coming years.”

Malmsten says there are several issues connected with the bill including the health and safety of volunteer firefighters, the definition of suppression firefighter, recruitment and retention for volunteer departments, a potential knowledge gap if the legislation is eventually extended to volunteers, challenges to the retirement age of those who want to work beyond 60 and expect the municipality to fulfil its duty to accommodate them and the cost to municipalities  and to the individual firefighters with normal retirement age (NRA) 65 pension plans to convert to NRA 60.

OPFFA president Fred LeBlanc, who worked extensively with the government on the bill, says the health and safety benefits of the proposed legislation are clear.

“We talked to the fire chiefs and they certainly saw some benefits of mandatory retirement,” he said. “This is a good thing for municipalities and for the fire service, and it’s good public policy. We can’t escape ageing, and along with ageing comes the increased risk of a cardiac event, and when you match that up with fire fighting – where there already is a heightened risk – this will mitigate the presumptive litigation liability risk for the municipalities by removing these older firefighters from the emergency-response component.”

The OAFC agrees that older firefighters are more susceptible to cardiac trouble and has a stack of studies to prove it, but it worries about the safety of volunteer firefighters and is in a bit of a conundrum over how best to move the issue forward. 

“If it’s a health and safety issue, then a firefighter is a firefighter and it should apply to all firefighters,” Malmsten says. “If it’s a case of physical capability, there’s no difference – career, part time and volunteer firefighters are trained to the same standard, they go to the same fire college, they wear the same bunker gear. If health and safety is the premise, then it should apply to everybody.”

Municipalities and fire chiefs who run composite departments are especially concerned, Malmsten says. 

“In composite departments you have career and volunteer firefighters working side by side. In Ontario, we have a strong mutual-aid system, so multiple fire departments can turn up and fight the same fire, use the same incident command, talk the same language, and it works. Now, you’re saying that little cluster over there, you’re full time and you’re treated differently than these volunteer firefighters beside you.”

According to an OAFC survey, about six per cent of Ontario’s 19,100 volunteer firefighters are over the age of 60, and 11 per cent of officers are 60 or older. In small municipalities, volunteer firefighters who have retired from their regular jobs are often the only people around to respond to daytime calls, the association says. In career departments, one per cent of the 10,900 full-time firefighters are over 60. Three per cent of officers in full-time departments are older than 60.

“There’s potentially a big, negative operational impact,” Malmsten says. “Our goal is to protect public safety. If you haul 11 per cent of the leadership out, then you’re going to create big problems in some communities. We’re saying, be very careful. What sounds like a high and mighty goal may have negative public-safety impacts.”

The OAFC would prefer that retirement at 60 be permissive – in other words, give municipalities the right to establish a retirement age and entrench it in their collective agreements or their regulating bylaws.

“On the operational side, we’re saying, if it’s a health and safety issue, then you need to treat everyone the same,” Malmsten says. “But on the other hand, the operational impacts might create public safety issues, so let the municipalities decide.”

Under the proposed legislation, municipalities that do not have a retirement age for firefighters in their collective agreements have two years in which to include it. After those two years those that do not include it will be presumed to have a retirement age of 60.

Equally confusing for many fire-service leaders is the definition of suppression. The legislation would apply only to career firefighters who work in suppression but both the Association of Municipalities of Ontario (AMO) and the OAFC say they’re unsure about which firefighters are considered to be in suppression.

“What about training officers?” Malmsten says. “They’re exposed. What do you do when training officers play suppression roles – they’re incident commanders, they’re safety officers and they’re expected to chip in and do that at a big fire. It’s not that clear cut. In the real world, people cross boundaries.”

The law firm Hicks Morley, which does considerable fire-service work, notes on its website that the amendment to the FPPA specifically applies to firefighters who are “regularly assigned to suppression duties”. Lawyer John Saunders says it’s not clear whether firefighters in training divisions will be included or excluded.

“They are usually involved in the training of suppression firefighters and therefore, may arguably be considered ‘regularly assigned to fire suppression duties,’ ” he says. “It will likely also capture platoon chiefs and district chiefs in suppression divisions. However, it will likely exclude those firefighters in the communications divisions, prevention divisions, mechanical divisions and secretarial positions.”

The OPFFA says use of the word suppression is commonplace in the fire service and is found in other areas of collective agreements such as hours of work and promotions.

“This legislation is pinpointing those firefighters assigned to suppressions – it was very clear to us that we need to keep this legislation very narrow to avoid any type of challenge,” LeBlanc says.

The OPFFA said in response to an alert issued by the AMO to municipal clerks and councils about the bill, that suppression covers those assigned to a suppression division or those who, as a regular part of their duties, are assigned to suppression – for example, a training officer who also responds to emergency calls as a suppression firefighter.

“I think the legislation . . . really did a good job of reflecting the reality in Ontario’s fire service by focusing, right now, at least, on the full-time sector, pinpointing it to suppression, and supporting a collective bargaining component, so it’s allowing the parties to negotiate an age that they feel is best and make sure it matches up with what they contribute to the pension plan, so it hits all the points, and there’s really no faults at all with the legislation that I can find,” LeBlanc says. “From that point, we’re very pleased and very supportive.”

Ontario prohibited mandatory retirement clauses in collective agreements in 2005 but exempted the practice in cases where retirement would be allowed under the provincial Human Rights Code as a bona fide occupational requirement (BFOR). Mandating retirement at age 60 has been a BFOR in Ontario since the 1980s, but LeBlanc said a well-known 2008 challenge at the Human Rights Tribunal by London district chief Edwin Espey served as a catalyst for greater clarity.

Espey opposed mandatory retirement at 60 but the tribunal reaffirmed earlier decisions, noting that “the risks of cardiac events for firefighters are significant and increase with age, in particular after age 60. The risk of an on-the-job cardiac event during emergency response is particularly high.”

LeBlanc says Bill 181 may stand as a model for other provinces looking at the health and safety of firefighters.

“The abolishment of mandatory retirement happened in a lot of places before it happened in Ontario,” LeBlanc said.  “It’s pretty common out there to have the bona fide occupation requirement – but doing it this way, doing it specifically under our legislation, the FPPA, is a little bit unique rather than trying to amend the Human Rights Code, where it’s specific to firefighters and specific to suppression firefighters. So, from that point I think Ontario has really taken the lead on this issue.”