The Supreme Court of Canada refused to give a pink slip to mandatory retirement yesterday in a ruling that was a loss for a New Brunswick miner who challenged being forced off the job.

While mandatory retirement is now outlawed in every province but Nova Scotia, several allow exceptions when a company pension plan is designed around retirement at age 65.

Miner Melrose Scott alleged that New Brunswick's exemption amounts to unjustified age discrimination, but the Supreme Court ruled that companies could continue to have immunity as long as they showed that their pension plans were created in good faith and not as a sham to circumvent employee rights.

The decision means the New Brunswick Human Rights Commission will now consider Mr. Scott's complaint against the Potash Corp. of Saskatchewan using the new standard established by the Supreme Court.

It's a test that doesn't bode well for Mr. Scott, who worked at the company's New Brunswick mine for 20 years until he turned 65 in 2004.

"I think it stinks," said Mr. Scott, who lives near Markhamville, N.B. "I am healthy and capable and willing to work and I just don't want to stop working. I'd go back to prove my point, if nothing else."

Justice Rosalie Abella, writing for the 4-3 majority, rejected the commission's argument that the bar should be much higher for companies in that they should have to show it would be impossible to accommodate individual employees without imposing "undue hardship" on the employer or the plan.

Chief Justice Beverley McLachlin, while agreeing that the case should be settled by the human rights tribunal, accused the majority of setting the bar too low for employers. She proposed a more stringent test requiring companies to show that their policies were "reasonably necessary to the operation and sustainability of the plan."

Provinces that allow pension-plan exemptions to forced retirement include New Brunswick, Alberta, Prince Edward Island and Newfoundland and Labrador.

The Supreme Court steered clear of an invitation to make a sweeping policy pronouncement on forced retirement for the first time in almost 20 years, sticking exclusively to the exemption test that should be applied under New Brunswick law.

© The Ottawa Citizen 2008