Central Alberta Dairy Pool v. Alberta (Human Rights Commission)

Central Alberta Dairy Pool v. Alberta (Human Rights Commission)
Collection
Supreme Court Judgments
Date
1990-09-13
Report
[1990] 2 SCR 489
Case number
20850
Judges
Dickson, Robert George Brian; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 20850
Decision Content
Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489
Alberta Human Rights Commission Appellant
v.
Central Alberta Dairy Pool Respondent
and
The Canadian Human Rights Commission,
Canadian Jewish Congress and
Seventh‑day Adventist Church in Canada Interveners
indexed as: central alberta dairy pool v. alberta (human rights commission)
File No.: 20850.
1989: October 13; 1990: September 13.
Present: Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Cory and McLachlin JJ.
on appeal from the court of appeal for alberta
Civil rights ‑‑ Freedom of religion ‑‑ Adverse effect discrimination ‑‑ Employer requiring work on Monday because of demands imposed by nature of business ‑‑ Employee's religion requiring observance of Easter Monday ‑‑ Whether the employer's rule could be upheld as a bona fide occupational qualification ‑‑ If not, whether respondent could demonstrate accommodation of complainant's religious beliefs up to the point of undue hardship ‑‑ If so, whether the respondent reasonably accommodated the complainant's religious beliefs ‑‑ Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, s. 7(1), (3).
The complainant launched a complaint against the respondent alleging that it refused to continue to employ him because of his religion, contrary to s. 7(1) of the Individual's Rights Protection Act. The complainant's religion required that he not work on his Sabbath and holy days. There was a general understanding that employees work during "working days" but this "rule" was not inflexible and complainant had been accommodated on at least one occasion. The respondent refused complainant's request for leave without pay for Easter Monday because of its particularly onerous operational requirements on Mondays. The complainant was informed that if he failed to report to work on Easter Monday his employment would be terminated. He did not report for work and was dismissed.
The Board of Inquiry established pursuant to the Act found that the respondent had discriminated against the complainant contrary to s. 7 of the Act and ordered the respondent to pay him partial compensation for his lost wages. An appeal to the Alberta Court of Queen's Bench was allowed by MacNaughton J. and affirmed by the Alberta Court of Appeal.
At issue here were: (1) whether the employer's rule could be upheld as a bona fide occupational qualification (BFOQ) under s. 7(3) of the Act; (2) if not, whether it was still open to the respondent to demonstrate that it had accommodated the complainant's religious beliefs up to the point of undue hardship; and (3) if so, whether the respondent reasonably accommodated the complainant's religious beliefs?
Held: The appeal should be allowed.
Per Dickson C.J. and Wilson, L'Heureux‑Dubé and Cory JJ.: Bona fide occupational qualification and bona fide occupational requirement are equivalent and co‑extensive terms.
Direct and adverse effect discrimination ought to be distinguished for purposes of determining the appropriate response to a prima facie case of discrimination. A rule established by the employer which fits into the category of "direct discrimination" and which is not saved by any statutory justification is simply struck down. It can only stand if it is valid in its application to all members of the group affected by it. This result does not obtain, however, where a neutral rule has an adverse discriminatory effect. Its effect on the complainant must be considered and some accommodation required from the employer for the complainant's benefit if the purpose of the Act is to be given effect. The working rule to which the duty of accommodation applies need not be "reasonably necessary"; it need only be "a condition or rule rationally related to the performance of the job".
Bhinder v. Canadian National Railway Co. is correct in so far as it states that accommodation is not a component of the BFOQ test and that once a BFOQ is proven the employer has no duty to accommodate. It is incorrect, however, in so far as it applied that principle to a case of adverse effect discrimination. The end result is that where a rule discriminates directly it can only be justified by a statutory equivalent of a BFOQ, i.e., a defence that considers the rule in its totality. (All human rights codes in Canada contain some form of BFOQ provision.) However, where a rule has an adverse discriminatory effect, the appropriate response is to uphold the rule in its general application and consider whether the employer could have accommodated the employee adversely affected without undue hardship.
The rule at issue here bore the form of a neutral condition of general application but had an adverse impact on adherents of minority religions or sects. The defence of accommodation requires that the rule be rationally connected to the performance of the job and that the respondent employer accommodate the employee up to the point of undue hardship. The respondent is equally entitled to organize its business by closing down its processing operation on the weekend resulting in Monday's being a particularly busy day. Its work rule meets the test of being rationally connected to the job of being a dairy processor. The complainant was lawfully entitled to pursue the practices of his religion and to be free of the compulsion to work on Easter Monday contrary to his religious beliefs. The onus is upon the respondent employer to show that it made efforts to accommodate the complainant's religious beliefs up to the point of undue hardship.
A comprehensive definition of what constitutes undue hardship is unnecessary. Some of the factors relevant to such an appraisal, however, might be listed. They might include financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the workforce and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.
Per La Forest, Sopinka and McLachlin JJ.: The duty to accommodate must be dealt with in the context of the bona fide occupational qualification exception or defence.
The general intent and spirit of the Act creates a duty to accommodate in religious discrimination cases. Where a duty to accommodate arises but the statute contains no BFOQ, the employer can discharge the duty only by showing that all reasonable efforts have been made to accommodate individual employees short of creating undue hardship for the employer. This does not change because of the addition of a statutory defence of BFOQ. The addition of the defence is relevant to the discharge of the duty but not to its existence.
Where a statutory BFOQ provision is present, its language cannot be avoided. Once that defence is made out there is no basis for an individual examination of the circumstances of each employee. The question, however, is how the BFOQ is established having regard to the duty to accommodate.
A successful BFOQ defence requires that there be no reasonable alternative to a rule that does not take into account the individual circumstances of those to whom it applies. What is reasonable in these terms is a question of fact. If the employer fails to provide an explanation as to why individual accommodation cannot be accomplished without undue hardship, the duty to accommodate has not been discharged and the BFOQ has not been established.
An employer with a large number of employees of many different religions may be able to discharge the duty inherent in the BFOQ by adopting a policy with respect to the accommodation of the religious beliefs of its employees. Such a policy may be a reasonable alternative to a practice that entails an ad hoc accommodation of individual employees. An employer that has not adopted a policy with respect to accommodation and cannot otherwise satisfy the trier of fact that individual accommodation would result in undue hardship will be required to justify his conduct with respect to the individual complainant. Even then the employer can invoke the BFOQ defence.
Here, the finding of the Board of Inquiry that the employer "made no significant effort to accommodate the request" was fatal to the establishment of a BFOQ.
Cases Cited
By Wilson J.
Overturned: Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; considered: Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; Caldwell v. Stuart, [1984] 2 S.C.R. 603; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279.
By Sopinka J.
Considered: Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; Roosma v. Ford Motor Co. (1988), 9 C.H.R.R. D/4743; referred to: Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971), aff'g 429 F.2d 324 (6th Cir. 1970).
Statutes and Regulations Cited
Canadian Human Rights Act, S.C. 1976‑77, c. 33, s. 14(a).
Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, ss. 10, 20.
42 U.S.C.A. s. 2000e(j), as amended by Pub. L. 92‑261, s. 2, 86 Stat. 103.
Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, s. 7(1), (3).
Interpretation Act, R.S.A. 1980, c. I‑7, ss. 10, 12(1).
Ontario Human Rights Code, R.S.O. 1980, c. 340, s. 4(1)(g).
Ontario Human Rights Code, 1981, S.O. 1981, c. 53.
Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (1964), Title VII Equal Employment Opportunity .
Authors Cited
Canada. Canadian Human Rights Commission. The Effects of the Bhinder Decision on the Canadian Human Rights Commission: A Special Report to Parliament. Ottawa: Canadian Human Rights Commission, 1986.
Tarnopolsky, Walter Surma and William F. Pentney. Discrimination and the Law. Fifth Cumulative Supplement (September 1989). By William F. Pentney. Don Mills, Ont.: De Boo, 1989.
APPEAL from a judgment of the Alberta Court of Appeal (1988), 62 Alta. L.R. (2d) 207, 56 D.L.R. (4th) 192, [1989] 1 W.W.R. 78, dismissing an appeal from a judgment of MacNaughton J. (1986), 45 Alta. L.R. (2d) 325, 73 A.R. 57, 29 D.L.R. (4th) 154, [1986] 5 W.W.R. 35, Canadian Labour Law Reports 17,001, 8 C.H.R.R. D/3639, allowing an appeal from a ruling of a Board of Inquiry. Appeal allowed.
Russell D. Albert and J. Leslie Wallace, for the appellant.
Fred Day, for the respondent.
René Duval, for the intervener the Canadian Human Rights Commission.
John I. Laskin and Robyn M. Bell, for the intervener the Canadian Jewish Congress.
Gerald Chipeur, for the intervener Seventh-day Adventist Church.
//Wilson//
The judgment of Dickson C.J. and Wilson, L'Heureux-Dubé and Cory JJ. was delivered by**
WILSON J. -- The principal question raised in this appeal is whether a particular attendance rule imposed by the respondent employer on an employee is a bona fide occupational qualification ("BFOQ") under the Alberta Individual's Rights Protection Act, R.S.A. 1980, c. I-2 ("the Act"). In the event that this Court answers the question in the negative, we are further called upon by the parties to consider whether the respondent might defend itself from a charge of religious discrimination by proving that it accommodated the employee up to the point of undue hardship.
1. The Facts
The appeal arises out of a complaint launched by Jim Christie ("the complainant") against the respondent alleging that the respondent refused to continue to employ him because of his religion, contrary to s. 7(1) of the Act. His complaint was upheld by the Board of Inquiry but overturned by the Alberta Court of Queen's Bench. The Alberta Court of Appeal upheld the Queen's Bench decision.
The complainant was employed by the respondent from August 26, 1980 to April 4, 1983 in a number of positions in the production operations of the respondent's milk processing plant in Wetaskiwin, Alberta. He became a prospective member of the World Wide Church of God in February, 1983. The Church recognizes a Saturday Sabbath, a five-day Fall Feast of the Tabernacle, and five other holy days during the year. Religious adherents are expected not to work on these days, although the Church does not impose sanctions for disobedience.
The complainant requested to work the early shift on Fridays in order that his work schedule not conflict with the onset of his Sabbath. This request was granted. He expressed a desire to schedule his vacation time in the future to coincide with the Fall Feast of the Tabernacle but consideration of this request was superceded by subsequent events.
On March 25, 1983, Mr. Christie requested through his supervisor permission to take unpaid leave on Tuesday, March 29 and Monday, April 4, in order to observe two holy days. The latter day was Easter Monday. He offered to work alternative days outside his regular schedule in consideration for his absence on the two holy days. His supervisor responded that he would be allowed to be absent March 29 but for reasons of plant operating needs he would be required at work Monday, April 4.
Mondays are especially busy days at the plant. Milk arrives seven days a week and milk received on the weekend is prepared Sunday for canning on Monday. All milk that arrives on the weekend must be canned promptly on Monday to prevent spoilage. Mondays are also busy shipping days. In cases of employee absence on Mondays due to sickness or other emergencies the contingency arrangement contemplated under the collective agreement was to adjust work assignments and/or have the supervisor assist in maintaining operations.
The complainant reiterated his request and the reasons for it to his supervisor, his shop steward, and the Branch Manager. A meeting between these parties, as well as a union representative, took place on March 30 at which time the complainant was advised by the Branch Manager that if he failed to report for work on April 4 his employment would be terminated. The complainant did not appear for work on April 4. When he returned on April 5 he found his position occupied by a newly hired employee. He had been dismissed.
The Board of Inquiry established pursuant to the Act found that the respondent had discriminated against the complainant contrary to s. 7 of the Act and ordered the respondent to pay him partial compensation for Christie's lost wages. An appeal to the Alberta Court of Queen's Bench was allowed by MacNaughton J. and affirmed by the Alberta Court of Appeal.
2. The Relevant Legislation
Individual's Rights Protection Act, R.S.A. 1980 c. I-2:
[Preamble]
WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of freedom, justice and peace in the world; and
WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in dignity and rights without regard to race, religious beliefs, colour, sex, physical characteristics, age, ancestry or place of origin; and
WHEREAS it is fitting that this principle be affirmed by the Legislature of Alberta in an enactment whereby those rights of the individual may be protected:
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:
. . .
7(1) No employer or person acting on behalf of an employer shall
(a) refuse to employ or refuse to continue to employ any person, or
(b) discriminate against any person with regard to employment or any term or condition of employment,
because of the race, religious beliefs, colour, sex, physical characteristics, marital status, age, ancestry or place of origin of that person or of any other person.
. . .
(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational qualification.
The Individual's Rights Protection Amendments Act, 1985, S.A. 1985, c. 33, amended s. 7(3) and replaced "qualification" with "requirement". The amendment also substituted the term "physical disability" for "physical characteristics".
Interpretation Act, R.S.A. 1980, c. I-7:
10 An enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and interpretation that best ensures the attainment of its objects.
. . .
12(1) The preamble of an enactment is a part of the enactment intended to assist in explaining the enactment.
3. The Decisions Below
Board of Inquiry (G. M. Johanson, Chairman)
The Board's decision preceded this Court's judgments in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, and Bhinder v. Canadian National Railway Co, [1985] 2 S.C.R. 561. In the course of its decision the Board considered the public policy underlying the Act (as expressed in the preamble) as well as the interaction of ss. 7(1) and 7(3). It concluded, as did this Court in O'Malley, that intent is not a necessary prerequisite to a finding of discrimination in breach of a human rights statute.
In order to establish a prima facie case of discrimination the Board held that the complainant had to prove:
(a) the existence of a bona fide religion with a genuine commitment to it;
(b) adequate notice of the employee's religious requirements to the employer; and
(c) an effort on the part of the employee to accommodate the employer as far as possible without being required to compromise his beliefs.
The first two points were not in dispute. The complainant's sincerity was not questioned at that time and the employer did not contend that more notice would have affected its decision.
With respect to the complainant's attempt to accommodate his employer, the Board found that his efforts were adequate and "other alternatives could have been explored if his employer had been open to such a discussion". The Board added, however, that Mr. Christie
. . . could and should have been more diligent in consulting with his minister in the World Wide Church of God to better understand the position of his church based on his particular job and the need of his employer. Mr. Christie was new to the Church and admitted he had much to learn. Although Mr. Christie did raise this matter with his minister, the evidence leads us to conclude this was not done in a thorough and complete manner with due regard to the seriousness of his situation. The evidence leads also to the conclusion his minister may not have provided adequate information and advice.
The Board ruled that these shortcomings in Mr. Christie's conduct could be dealt with at the remedial stage and did not affect the legitimacy of his prima facie case.
The Board then turned to the issue of the employer's accommodation of the complainant's religious beliefs. It held that the employer's obligation under s. 7(1) of the Act to refrain from discriminatory practices could be limited only to the extent that accommodation would cause undue hardship. It identified four factors to be considered in assessing undue hardship in relation to reasonable accommodation: (1) interchangeability of work force and facilities; (2) disruption of a collective agreement; (3) problems of morale of other employees; and (4) costs. The Board found that the interchangeability factor was the only one of any significance in the present case. Since Mondays were especially busy the employer did not have the usual flexibility to reassign the work force as it did on other days such as Tuesday, March 29 when Mr. Christie was permitted to be absent. Although the supervisor, Mr. Shantz, had the ability to fill in, it was unreasonable to expect someone in his position to do so except "in limited and mutually agreeable circumstances".
The collective agreement did not present a serious obstacle to giving Mr. Christie the day off on April 4 and no evidence was submitted by the employer with respect to employee morale or costs. The Board concluded that:
. . . the evidence in this case did not establish an undue hardship or more than de minimus [sic] cost would necessarily have resulted if full and complete consideration had been given to Mr. Christie's request at the time it was raised. The only real evidence was that Mr. Shantz was required to work on April 4 with the resulting inconvenience to the performance of his supervisory duties. Because this was the situation and because the Pool did not make any particular attempt to accommodate the request in recognition it was based on the religious beliefs of the employee, we find that the Pool was in violation of Subsection 7(1) of the Individual's Rights Protection Act in that as an employer, they refused to continue to employ Mr. Christie because of his religious beliefs and this action was not based on a bona fide occupational qualification as provided in Subsection 7(3).
The Board did not order reinstatement as a remedy because of "the conflict between Mr. Christie's religious beliefs and the requirements of his production position which in the longer term present a conflict which we are not at all certain can be resolved". Also, it ordered only partial compensation of Mr. Christie's lost income because "we do not believe the Pool can be held totally responsible".
Alberta Court of Queen's Bench (MacNaughton J.) (1986), 45 Alta. L.R. (2d) 325
MacNaughton J. held, at p. 328, that the Board erred in law in finding that the employer's action was not based on a bona fide occupational qualification:
The complainant violated a term or condition of his employment which compelled him to attend regularly, and, in particular on 4th April, 1983, at his place of employment in accordance with the work schedule established by the appellant. Such term or condition of employment was a bona fide occupational qualification within the meaning of s. 7(3) of the Act . . . .
Having found that attendance in accordance with the employer's work schedule was a bona fide occupational qualification, MacNaughton J. (citing the judgment of McIntyre J. in Bhinder) ruled that the employer had no duty to accommodate once the BFOQ defence was established. He also held that in any event the employer had reasonably accommodated the religious beliefs of the employee. Mr. Christie, on the other hand, had failed to take reasonable steps toward accommodating the employer's needs in that he "did not make diligent and complete inquiries of his church representatives to determine whether satisfactory solutions could be found". In coming to this conclusion, MacNaughton J. relied on evidence from a witness (who was also a member of the same Church as Mr. Christie) that "if the requirement to work on holy days is an ongoing situation, a person has the responsibility to seek, over time, other employment which will allow observance of holy days". The witness was of the view that Mr. Christie's present occupation would present an ongoing conflict with his religious obligations.
Alberta Court of Appeal (Harradence, Belzil, Stevenson JJ.A.), [1986] 5 W.W.R. 35
In a brief judgment Harradence J.A. ruled on behalf of the Court that MacNaughton J. did not err in concluding that the requirement of regular attendance was a BFOQ. In light of this Court's judgment in Bhinder it was unnecessary to determine whether there was any duty of accommodation on the employer.
4. The Issues
The dispute between the parties in this case revolves around the designation of an employer rule as a BFOQ under s. 7(3) of the Act. The parties, however, are not agreed as to how to characterize the particular rule at issue. The appellant describes it as mandatory attendance at work on Mondays. The respondent contends that it is "regular attendance, in general, and attendance on April 4th, 1983 specifically".
In my view, both of these descriptions are inaccurate. The employer did not impose mandatory attendance on Mondays without exception. The record clearly indicates that exceptions were made in cases of illness, unspecified emergencies and, one supposes, annual vacations. It was not the case that an employee who missed Monday due to illness would automatically be dismissed. Indeed, the employer had a contingency plan for dealing with precisely those situations. As for the respondent's submission, I note that there is no evidence that the complainant did not attend regularly, so the question of regular attendance does not arise in this context. It is true that the complainant asked for and received permission to be absent on Friday, April 1. To the extent that the respondent implies that its concession with respect to Friday is a relevant consideration in assessing its decision about the following Monday, the respondent's position is disingenuous. At no time did the respondent assert that its decision with respect to Monday would have been different had the appellant not requested and received other shift changes. On the contrary, there is every indication that the respondent would have refused to give the complainant Monday off for religious reasons under any circumstances. Moreover, it is not the case that the complainant refused to work Mondays in general. Neither could it be said that religious holidays (other than Easter Monday) would fall on Mondays except rarely. The complainant in the case at bar simply asked for one particular Monday off. Given this fact, the only way to characterize the respondent's rule would appear to be "mandatory attendance on Mondays except in case of illness or other emergencies, religious obligation not being included as an emergency for this purpose". Stated in the obverse, the rule prohibited Monday absences due to religious obligation.
So much by way of preliminary comment. The issues raised in the appeal are as follows:
1. Can the employer's rule be upheld as a bona fide occupational qualification under s. 7(3) of the Act?
2. If question 1 is answered in the negative, was it still open to the respondent to demonstrate that it had accommodated the complainant's religious beliefs up to the point of undue hardship?
3. If question 2 is answered in the affirmative, did the respondent in fact reasonably accommodate the complainant's religious beliefs?
I note in passing that the respondent employer also wishes to put in issue for the first time before this Court the existence of a prima facie case of discrimination. It alleges, inter alia, that the complainant did not correctly understand the tenets of his faith and that his status as a prospective rather than fully baptized member of the Church somehow compromises his claim to recognition as a genuine adherent of the faith. The respondent did not impugn the sincerity of the complainant's beliefs at any earlier stage of the proceedings and, in my view, there is no reason to question the Board's finding of fact that "Mr. Christie had a genuine commitment to a bona fide religion".
5. Analysis
This Court has had an opportunity on several occasions to consider the statutory concept of a bona fide occupational qualification ("BFOQ") or bona fide occupational requirement ("BFOR") but a review of the relevant authorities suggests that they may not be completely compatible.
I note at the outset that while McIntyre J. in Bhinder left open the question whether a bona fide occupational qualification has the same meaning as a bona fide occupational requirement, I am of the view that they are equivalent and co-extensive terms. Most of the jurisprudence treats them as interchangeable and I agree that they are intended to give expression to the same concept. Accordingly, my conclusions with respect to the meaning of a bona fide occupational qualification are equally applicable to a bona fide occupational requirement.
The first statement by this Court regarding a statutory BFOQ was made in Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202. At issue was a policy mandating retirement at age sixty for fire fighters. The employer submitted that the policy was a BFOQ within the meaning of the Ontario Human Rights Code and thus did not constitute discrimination on the basis of age. Speaking for the Court McIntyre J. outlined the procedure for dealing with a BFOQ provision at p. 208:
Once a complainant has established before a board of inquiry a prima facie case of discrimination, in this case proof of a mandatory retirement at age sixty as a condition of employment, he is entitled to relief in the absence of justification by the employer. The only justification which can avail the employer in the case at bar, is the proof, the burden of which lies upon him, that such compulsory retirement is a bona fide occupational qualification and requirement for the employment concerned. The proof, in my view, must be made according to the ordinary civil standard of proof, that is upon a balance of probabilities.
Turning to the definition of a BFOQ he stated:
Two questions must be considered by the Court. Firstly, what is a bona fide occupational qualification and requirement within s. 4(6) of the Code and, secondly, was it shown by the employer that the mandatory retirement provisions complained of could so qualify? . . . To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.
In other words, past a certain point the physical strength, stamina and alertness of fire fighters diminishes with age, making them less able to deal with the hazards and dangers of fire fighting. The attendant risk to public safety is obvious. Thus, the prime justification advanced for the mandatory retirement limitation in Etobicoke was public safety, as opposed to economy or simple efficiency.
McIntyre J. distinguished mandatory retirement for reasons of safety from mandatory retirement for purely economic reasons. He states at p. 209:
In cases where concern for the employee's capacity is largely economic, that is where the employer's concern is one of productivity, and the circumstances of employment require no special skills that may diminish significantly with aging, or involve any unusual dangers to employees or the public that may be compounded by aging, it may be difficult, if not impossible, to demonstrate that a mandatory retirement at a fixed age, without regard to individual capacity, may be validly imposed under the Code. In such employment, as capacity fails, and as such failure becomes evident, individuals may be discharged or retired for cause. [Emphasis added.]
Where, however, the cost of "unpredictable human failure" is public safety, the Court agreed that an arbitrary retirement age may be imposed. McIntyre J. said at pp. 209-10:
Faced with the uncertainty of the aging process an employer has, it seems to me, two alternatives. He may establish a retirement age at sixty-five or over, in which case he would escape the charge of discrimination on the basis of age under the Code. On the other hand, he may, in certain types of employment, particularly in those affecting public safety such as that of airline pilots, train and bus drivers, police and firemen, consider that the risk of unpredictable individual human failure involved in continuing all employees to age sixty-five may be such that an arbitrary retirement age may be justified for application to all employees. In the case at bar it may be said that the employment falls into that category. While it is no doubt true that some below the age of sixty may become unfit for firefighting and many above that age may remain fit, recognition of this proposition affords no assistance in resolving the second question. In an occupation where, as in the case at bar, the employer seeks to justify the retirement in the interests of public safety, to decide whether a bona fide occupational qualification and requirement has been shown the board of inquiry and the court must consider whether the evidence adduced justifies the conclusion that there is sufficient risk of employee failure in those over the mandatory retirement age to warrant the early retirement in the interests of safety of the employee, his fellow employees and the public at large.
The Court concluded that the type of "impressionistic" evidence adduced by the employer in defence of its policy was "inadequate to discharge the burden of proof lying upon the employer." It had not made out its case for a BFOQ. It is important to note, however, that the disposition of the case turned on the insufficiency of the evidence and not on the illegitimacy of the claim that the evidence was adduced to support.
The next two significant judgments are Bhinder and O'Malley.
In O'Malley the appellant was a full-time employee of the respondent. She subsequently became a member of the Seventh-Day Adventist Church which recognizes a Saturday Sabbath. The tenets of the faith prohibited working from sundown Friday to sundown Saturday. Her employer refused to permit her to continue as a full-time employee unless she worked on Saturdays. The relevant legislation, the Ontario Human Rights Code, did not contain a bona fide occupational requirement provision applicable to cases of religious discrimination. In a unanimous judgment this Court held first that intent is not a necessary element of discrimination under the Code. The concept of "adverse effect discrimination" developed in the American jurisprudence was accepted and adopted by McIntyre J. on behalf of the Court. At page 551 he distinguishes between direct discrimination and adverse effect discrimination:
A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, "No Catholics or no women or no blacks employed here." There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force . . . . An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.
Where the rule established by the employer fits into the category of "direct discrimination" and is not saved by any statutory justification, it is simply struck down. The example cited by McIntyre J. was Etobicoke. In that case the mandatory retirement rule discriminated directly on the basis of age and the employer's evidence was inadequate to establish a BFOQ. The rule was struck down. Where a neutral rule has an adverse discriminatory effect, the same result does not obtain. At page 552 of O'Malley McIntyre J. contrasts the approach taken to direct discrimination with that taken to adverse effect discrimination:
No question arises in a case involving direct discrimination. Where a working rule or condition of employment is found to be discriminatory on a prohibited ground and fails to meet any statutory justification test, it is simply struck down: see the Etobicoke case, supra. In the case of discrimination on the basis of creed resulting from the effect of a condition or rule rationally related to the performance of the job and not on its face discriminatory a different result follows. The working rule or condition is not struck down, but its effect on the complainant must be considered, and if the purpose of the Ontario Human Rights Code is to be given effect some accommodation must be required from the employer for the benefit of the complainant.
It is notable that the working rule to which the duty of accommodation applies need not be "reasonably necessary", i.e., it need not be a BFOR. Rather, it need only be "a condition or rule rationally related to the performance of the job". In O'Malley the employer adduced no evidence indicating accommodation of the employee's religious needs. In the result Mrs. O'Malley's appeal was allowed.
In Bhinder the employer had a rule which required the wearing of a hard hat on the job site where the appellant worked as a maintenance electrician. As a practising Sikh, the appellant's religion forbade him to wear any head covering other than a turban. The issue was whether the employer's rule was a BFOR under the relevant legislation, the Canadian Human Rights Act . The majority of the Court (Dickson C.J. and Lamer J. (as he then was) dissenting) held that the Tribunal implicitly (although not expressly) found that the rule was a BFOR within the definition of Etobicoke but subsequently erred in attempting to make an exception with respect to its application to Mr. Bhinder because of its discriminatory impact on him. The Tribunal found that the rule was "adopted for genuine business reasons with no intent to offend the principles of the Act" and was both "useful" and "reasonable in that it promoted safety by reducing the risk of injury". In the majority's view, this was tantamount to a finding of a BFOR within the definition in Etobicoke. In order to appreciate fully the implications of Bhinder it is necessary to review in some detail the ruling of the Tribunal as well as the majority and dissenting judgments of this Court.
The salient facts found by the Tribunal in Bhinder were as follows:
(1)The hard hat rule was useful and reasonable in that it promoted safety by reducing the risk of injury to the employee.
(2)The rule was adopted by the employer for genuine business reasons and with no intent to offend the principles of the Canadian Human Rights Act .
(3)Mr. Bhinder was able to perform his job effectively and efficiently without wearing a hard hat.
(4)The risk of injury to Mr. Bhinder if he did not wear a hard hat was negligible.
(5)T