Bhinder v. CN

Bhinder v. CN
Collection
Supreme Court Judgments
Date
1985-12-17
Report
[1985] 2 SCR 561
Case number
17694
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 17694
Decision Content
Bhinder v. CN, [1985] 2 S.C.R. 561
K.S. Bhinder and the Canadian Human Rights Commission Appellants;
and
Canadian National Railway Company Respondent;
and
Attorney General of Canada, Manitoba Human Rights Commission, Saskatchewan Human Rights Commission, Alberta Human Rights Commission and Canadian Association for the Mentally Retarded Interveners.
File No.: 17694.
l985: January 30; 1985: December 17.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.
on appeal from the federal court of appeal
Civil rights ‑‑ Employment ‑‑ General work rule ‑‑ Rule conflicting with religious tenet of employee ‑‑ Employee dismissed for non‑compliance with rule ‑‑ Whether or not work rule creating discriminatory practice with respect to employee contrary to Canadian Human Rights Act ‑‑ Canadian Human Rights Act , 1976‑77 (Can.), c. 33, ss. 2, 3, 7, 10, 14(a).
CN introduced a work rule that all employees wear a hard hat at a particular work site. Bhinder, a Sikh employee, refused to comply because his religion did not allow the wearing of headgear other than the turban. Bhinder's employment ceased since the company refused to make exceptions to the rule and Bhinder refused to accept other work not requiring a hard hat. The Canadian Human Rights Tribunal found CN had engaged in a discriminatory practice and ordered reinstatement and compensation for loss of salary. The Federal Court of Appeal, on a s. 28 application, set aside that decision and referred the matter back for disposition on the basis that the work rule was not a discriminatory practice. At issue here was whether or not the hard hat rule was a bona fide occupational requirement, and if so, the effect to be given s. 14 (a) of the Canadian Human Rights Act .
Held (Dickson C.J. and Lamer J. dissenting): The appeal should be dismissed.
Per Estey, McIntyre and Chouinard JJ.: The hard hat rule was a bona fide occupational requirement which met the Etobicoke test: one honestly imposed in the interest of the performance of the work with all reasonable dispatch, safety and economy and not for extraneous reasons aimed at defeating the Code. The test does not vary with the special characteristics and circumstances of the complainant. A working condition does not lose its character as a bona fide occupational requirement because it may be discriminatory. Rather, as a bona fide occupational requirement, it may permit consequential discrimination, if any. Since s. 14(a) of the Canadian Human Rights Act clearly states that no discriminatory practice exists where a bona fide occupational requirement is established, applying such a requirement to each individual with varying results would rob the requirement of its character as an occupational requirement and would ignore the plain language of the section. There was no duty to accommodate since s. 14 (a) declared no discriminatory practice where a bona fide occupational requirement existed.
Per Beetz and Wilson JJ.: If the bona fides of an occupational requirement is to be assessed in relation to each employee, s. 14(a) is effectively read out of the Act since, absent the section, an employer is obliged to accommodate the individual up to the point of undue hardship even if the requirement is a bona fide occupational one.
The purpose of s. 14(a) is to make the requirement of the job prevail over the requirement of the employee. It negates any duty to accommodate by stating that the imposition of a genuine job‑related requirement is not a discriminatory practice.
The legislature, by narrowing the scope of what constitutes a "discriminatory practice", has permitted genuine job‑related requirements to stand even if they have the effect of disqualifying some persons for those jobs. Section 14(a) does not conflict with the avowed purpose of the Act which is to prevent "discriminatory practices".
Per Dickson C.J. and Lamer J., dissenting: Section 14 (a) of the Canadian Human Rights Act was not intended to obliterate the duty to accommodate and, in doing so, diminish seriously protection of the individual from adverse effect discrimination in the Act. The purpose of the Act is to eradicate discriminatory effects and any interpretation of s. 14 (a) which would significantly undermine the effectiveness of the Act in curbing adverse effect discrimination is contrary to the express and implied purposes of the Act. Such reduction of the protection of the individual from adverse effect discrimination under the Act would require clear and explicit words to that effect. The words of s. 14 (a) do not suffice.
The words "occupational requirement" refer to a requirement manifestly related to the occupation as a whole. The qualifying words "bona fide" require an employer to justify the imposition of an occupational requirement on a particular individual when such imposition has discriminatory effects on the individual. A requirement which is prima facie discriminatory against an individual, even if occupational, is not bona fide for the purposes of s. 14 (a) if its application to the individual is not reasonably necessary in the sense that undue hardship would result on the part of the employer if an exception or substitution were to be allowed on the part of the individual affected.
The test of a bona fide occupational qualification set out in Ontario Human Rights Commission v. Borough of Etobicoke does not exclude an interpretation of bona fide occupational requirement that the discriminatory impact of an occupational requirement on an individual be taken into account. The Etobicoke test left open the question of whether the assessment of reasonable necessity was to be considered in respect of the necessity of the general requirement or the necessity of applying the general requirement to an individual upon whom it would have a discriminatory effect. The Tribunal, therefore, was consistent with the Etobicoke test and with the words of s. 14 (a), when it decided that a bona fide occupational requirement (1) was to be assessed in respect of the particular circumstances surrounding the complaint and (2) included a duty to accommodate on the part of the employer.
The Tribunal effectively, and correctly, held that federal legislation is inoperative to the extent that it conflicts with the Canadian Human Rights Act . The Canada Labour Code and its regulations do not create an exception to the Canadian Human Rights Act . Where the two Acts conflict, the matter is governed by the Canadian Human Rights Act . The wearing of safety helmets by Sikhs, which has a prima facie discriminatory effect, is therefore governed by the Canadian Human Rights Act and not the Canada Labour Code . Even if the safety helmet policy were necessary under the Canada Labour Code and Regulations, that policy is not ipso facto a bona fide occupational requirement for the purpose of the Canadian Human Rights Act . The Tribunal could therefore order the employer to grant an employee an exemption because the general policy did not meet the requirements of s. 14 (a).
This Court should not disturb the Tribunal's findings of fact concerning the safety factors incident to not wearing a safety helmet. Nor should this Court disturb the conclusion reached by the Tribunal that respondent would not be subject to undue hardship if it were to exempt Mr. Bhinder from the safety helmet rule.
Cases Cited
By the majority
Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202 applied; Ontario Human Rights Commission and O’Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536, distinguished.
By the minority
Ontario Human Rights Commission and O’Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150.
Statutes and Regulations Cited
Canada Electrical Safety Regulations, C.R.C., c. 998.
Canada Labour Code, R.S.C. 1970, c. L‑1, ss. 81(1), (2), 82(1)(a), (b), 84(1)(g).
Canada Protective Clothing and Equipment Regulations, C.R.C., c. 1007.
Canadian Human Rights Act , 1976‑77 (Can.), c. 33, ss. 2, 3, 7(a), (b), 10(a), (b), 14(a).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Motor‑Cycle Crash Helmet (Religious Exemption) Act, 1976, 1976 (U.K.), c. 62, s. 1.
Ontario Human Rights Code, R.S.O. 1970, c. 318, s. 4(6).
Road Traffic Act 1972, 1972 (U.K.), c. 20.
Workmen’s Compensation Act, R.S.O. 1980, c. 539.
APPEAL from a judgment of the Federal Court of Appeal, [1983] 2 F.C. 531, allowing an application for judicial review of a decision of the Canadian Human Rights Tribunal finding discrimination. Appeal dismissed, Dickson C.J. and Lamer J. dissenting.
Ian G. Scott, Q.C., and Edward P. Belobaba, for the appellant K.S. Bhinder.
Russell Juriansz and James Hendry, for the appellant Canadian Human Rights Commission.
L. L. Band, Q.C., and Kenneth R. Peel, for the respondent.
Eric A. Bowie, Q.C., and Judith McCann, for the intervener the Attorney General of Canada.
M. C. Woodward, for the interveners Manitoba Human Rights Commission and Saskatchewan Human Rights Commission.
R. A. Philp, for the intervener Alberta Human Rights Commission.
David Baker, for the intervener Canadian Association for the Mentally Retarded.
The reasons of Dickson C.J. and Lamer J. were delivered by
1. The Chief Justice (dissenting)‑‑This is an appeal from a judgment of the Federal Court of Appeal in which that Court, pursuant to s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, set aside the decision of a Human Rights Tribunal appointed under the Canadian Human Rights Act , 1976‑77 (Can.), c. 33. The appeal raises two important issues: (1) are unintentional and adverse effect discrimination covered by ss. 7 and 10 of the Canadian Human Rights Act , and (2) what principles govern application of the "bona fide occupational requirement" defence in s. 14(a) of the Act? I have had the advantage of reading McIntyre J.'s reasons in this appeal and adopt his summary of the facts and lower court judgments. I will only supplement them where necessary for these reasons.
I
The Issues
2. The main question in this appeal is whether the Tribunal erred in law or fact, so as to justify interference with its decision by the Federal Court under s. 28 of the Federal Court Act . Before addressing the substantive issues raised in this appeal, I should note as a general principle that reviewing courts, under s. 28 of the Federal Court Act or otherwise, must be cautious and sensitive in exercising their powers. Restraint must be a prevailing factor in judicial review of the decisions of specialized statutory tribunals if the intentions and policies of Parliament and the provincial legislatures in establishing such tribunals are to be respected.
3. In the present case, the Tribunal found the respondent, Canadian National Railway Company (CN), to be liable for discrimination against Mr. Bhinder, one of the appellants, under the Canadian Human Rights Act . Mr. Bhinder was required to wear a safety helmet as a condition of employment. If he complied with this requirement he would be unable to wear a turban and this would be contrary to fundamental tenets of the Sikh religion of which he is a member. The Tribunal, in coming to its conclusion, held that (1) unintentional and adverse effect discrimination are prohibited under ss. 7 and 10 of the Canadian Human Rights Act ; and, (2) the safety helmet rule was not a bona fide occupational requirement under s. 14(a) of the Act because CN did not fulfill its duty to accommodate Mr. Bhinder's religious needs.
4. I concur with McIntyre J.'s reasons and conclusion on the question of whether ss. 7 and 10 of the Act prohibit adverse effect and unintentional discrimination. He adopts the reasoning expressed in Ontario Human Rights Commission and O’Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536, (released concurrently by this Court) in concluding that the definitions of discriminatory practices in the Canadian Human Rights Act, ss. 7 and 10 , extend to both unintentional and adverse effect discrimination. The Tribunal came to the same conclusion and was, in my opinion, correct.
5. With respect, I am unable to agree with McIntyre J.'s decision that the Tribunal erred in law in its interpretation of the bona fide occupational requirement in s. 14(a) of the Act. I believe the Tribunal was correct in concluding the respondent employer had not established the prima facie discriminatory practice of requiring a Sikh to wear a safety helmet was based on a bona fide occupational requirement.
II
The Tribunal's Decision that a Duty to Accommodate is Part of the Bona Fide Occupational Requirement
6. The Tribunal began by stating that human rights legislation is remedial and that the policies of the Act are not to be compromised or abridged unless by the express language of legislation. The bona fide exception must be interpreted narrowly so as not to conflict with the remedial aims of the Act. The root of the bona fide exception is, according to the Tribunal, "the ability of an employee to perform his or her duties", and the definition of what is a bona fide occupational requirement must be determined on a case by case basis according to the demands of particular jobs. A policy which discriminates against an individual on religious grounds will not, according to the Tribunal, be a bona fide occupational requirement unless the risks and costs incurred by the employer in accommodating the religious requirements of the individual outweigh the individual's freedom from religious discrimination. Where the practice of an employee's religious beliefs does not affect his or her ability to perform the duties of the job, nor jeopardize the safety of the public or other employees, nor cause undue hardship to the employer, either in a practical or economic sense, then a policy which restricts that practice is not a bona fide occupational requirement.
7. As Le Dain J. stated in the Federal Court of Appeal, at p. 559, the Tribunal "applied the principle that an employer has a duty to accommodate the religious practices of an employee by an exemption from or substitution for a requirement if he can do so without undue hardship to his business". In other words, only if allowing Mr. Bhinder to wear a turban would have caused undue hardship to the respondent would the safety helmet requirement have been a bona fide occupational requirement in respect of its application to Mr. Bhinder.
8. The Tribunal's interpretation of s. 14 (a) of the Canadian Human Rights Act is one that is, in my opinion, correct in law and should not be interfered with by this Court. Section 14 (a) provides:
14. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
In other words, prima facie discrimination in employment, on the basis of any of the prohibited grounds as enumerated in s. 3 of the Act, is not a "discriminatory practice" for the purpose of the Act if it is based on a bona fide occupational requirement. Thus, the wider the parameters of the bona fide occupational requirement, the narrower the range of prima facie discrimination prohibited by the Act.
9. The words "bona fide occupational requirement", in isolation, are elastic in the sense they are capable of having more than one meaning. Accordingly, they must be interpreted and given meaning in their proper context, and understood in such a way as to be consistent with the broad purposes of the Act as a whole. The purposes of the Canadian Human Rights Act are stated in s. 2 :
2. The purpose of this Act is to extend the present laws in Canada to give effect, within the purview of matters coming within the legislative authority of the Parliament of Canada, to the following principles:
(a) every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex or marital status, or conviction for an offence for which a pardon has been granted or by discriminatory employment practices based on physical handicap...
In O’Malley, supra, McIntyre J. said the following with respect to interpretation of human rights legislation, at pp. 546‑47:
It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment...and give to it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary‑‑and it is for the courts to seek out its purpose and give it effect.
Interpretation of s. 14(a) of the Act must be consistent with advancing the "broad purposes" of the Act as established in s. 2. In other words, the bona fide occupational requirement defence must not be given such wide parameters as to defeat the very purposes of the Act in which it is included.
10. The interpretation of s. 14 (a) by the Tribunal fulfils the mandate of s. 2. The emphasis of s. 2 is the protection of the individual from all forms of discrimination. The correct interpretation of s. 14(a) of the Act is one which ensures the individual the strongest protection from discrimination possible while at the same time being "consistent with his or her duties and obligations as a member of society". The Tribunal's interpretation, based on an incorporation of a duty to accommodate into the bona fide occupational requirement, is, in my view, consistent with these requirements. The duty to accommodate, which is so essential an aspect of human rights law (see O’Malley, supra), is necessary for ensuring protection of the individual under the Act from adverse effect discrimination. At the same time the Tribunal's interpretation of s. 14 (a) allows the employer to justify a policy which is prima facie discriminatory by demonstrating that the absence of such a policy would cause undue hardship to his or her business.
11. The respondent's interpretation of the bona fide occupational requirement is not, in my view, consistent with the broad purposes of the Canadian Human Rights Act . According to the respondent, a requirement in a bona fide occupational requirement as long as it is "manifestly job related or justified by business necessity". In other words, if the requirement is genuinely "occupational" in a general sense, that ends the inquiry. It is not necessary, in the respondent's view, to assess the impact of the requirement upon the individual against whom it discriminates, and to take reasonable acommodative steps to avoid such discrimination.
12. The implication of the respondent's interpretation of s. 14 (a) is a negation of the duty to accommodate and it therefore significantly diminishes the Act's protection from adverse effect discrimination. On this point I adopt the words of Le Dain J. [at p. 560] in the Federal Court of Appeal (as he then was):
...the duty to accommodate is a necessary aspect of the application of the exception of bona fide occupational requirement in a particular case. It is a corollary of the concept of adverse effect or indirect discrimination that the exception must be considered in relation to the employee affected; otherwise the exception could render the concept of indirect discrimination illusory. It is thus necessary in weighing the various factors, including the discriminatory effect, in order to determine whether the requirement is reasonably necessary in relation to the employee affected, that consideration be given to whether an exception from or substitution for the requirement could be allowed by the employer in the particular case without undue hardship to his business.
13. I do not believe Parliament intended s. 14(a) of the Act to obliterate the duty to accommodate thereby seriously diminishing the protection from adverse effect discrimination provided in the Act. It is clear from s. 2 that the purpose of the Canadian Human Rights Act is to eradicate discriminatory effects. An interpretation of s. 14 (a) which significantly undermines the effectiveness of the Act in curbing adverse effect discrimination is thus contrary to the express and implied purposes of the Act.
14. Such reduction of the protection of the individual from adverse effect discrimination under the Act would require clear and explicit words to that effect. The words of s. 14(a) of the Act do not suffice. The words "occupational requirement" mean that the requirement must be manifestly related to the occupation in which the individual complainant is engaged. Once it is established that a requirement is "occupational", however, it must further be established that it is "bona fide". A requirement which is prima facie discriminatory against an individual, even if it is in fact "occupational", is not bona fide for the purpose of s. 14 (a) if its application to the individual is not reasonably necessary in the sense that undue hardship on the part of the employer would result if an exception or substitution for the requirement were allowed in the case of the individual. In short, while it is true the words "occupational requirement" refer to a requirement manifest to the occupation as a whole, the qualifying words "bona fide" require an employer to justify the imposition of an occupational requirement on a particular individual when such imposition has discriminatory effects on the individual.
15. The Tribunal's interpretation of s. 14 (a) is, in my view, consistent with the general definition of bona fide occupational requirement in Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202. In that case the Court said, at p. 208:
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 the present case there is no question the safety helmet requirement met this test.
The Court continued (at p. 208):
In addition it [the bona fide occupational requirement] 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.
As I understand the latter passage, it does not exclude an interpretation of bona fide occupational requirement which requires the discriminatory impact of an occupational requirement on an individual to be taken into account. The gist of the passage is that a requirement be "reasonably necessary" for the efficient, economical and safe performance of the job. The passage leaves open the question of whether the assessment of reasonable necessity is to be considered in respect of the necessity of the general requirement, or the necessity of applying the general requirement to an individual upon whom it will have a discriminatory effect. In the present case, the Tribunal held that application of an occupational requirement to an individual who suffers discrimination as a result of such application must be "reasonably necessary", in the sense that the only alternative is undue hardship on the part of the employer, before it qualifies as a bona fide occupational requirement. This is, in my opinion, consistent with the test in Etobicoke, supra.
16. To conclude thus far, the Tribunal did not err in law in holding the bona fide occupational requirement of s. 14(a) of the Act (1) must be assessed in respect of the particular circumstances surrounding the individual complainant and (2) includes a duty to accommodate on the part of the employer. This result advances the purposes of the Act and is consistent with the words of s. 14 (a) as well as the decision of this Court in Etobicoke, supra.
III
Statutory Obligations of Canadian National with Respect to the Safety of Employees
17. The respondent further argues that the Human Rights Tribunal had no jurisdiction to order an employer to grant an employee an exemption from wearing a safety helmet in circumstances where to do so would violate the relevant provisions of the Canada Labour Code, R.S.C. 1970, c. L‑1, and the Regulations thereunder. Sections 81 and 82 of the Code provide:
81. (1) Every person operating or carrying on a federal work, undertaking or business shall do so in a manner that will not endanger the safety or health of any person employed thereupon or in connection therewith.
(2) Every person operating or carrying on a federal work, undertaking or business shall adopt and carry out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury in the operation or carrying on of the federal work, undertaking or business.
82. (1) Every person employed upon or in connection with the operation of any federal work, undertaking or business shall, in the course of his employment,
(a) take all reasonable and necessary precautions to ensure his own safety and the safety of his fellow employees; and
(b) at all appropriate times use such devices and wear such articles of clothing or equipment as are intended for his protection and furnished to him by his employer, or required pursuant to this Part to be used or worn by him.
Section 84(1)(g) authorizes the Governor in Council to make regulations as follows:
84. (1) Subject to any other Act of the Parliament of Canada and any regulations thereunder, the Governor in Council may make regulations for the safety and health of persons employed upon or in connection with the operation of any federal work, undertaking or business and for the provision therefor of safety measures in the operation or use of plants, machinery, equipment, vehicles, materials, buildings, structures and premises used or to be used in connection with the operation of any federal work, undertaking or business and in particular, but without restricting the generality of the foregoing, may make regulations
...
(g) prescribing the standards for protective clothing and equipment to be used by employees and the use of, and the responsibility for providing, such clothing and equipment;
Pursuant to s. 84(1)(g) the Governor in Council enacted certain regulations concerning protective clothing and electrical safety.
18. The Tribunal determined that federal legislation and regulations were to be construed and applied in such a way as to be consistent with the Canadian Human Rights Act . Thus, if the policy of an employer is discriminatory under the Act, it will not be rendered non‑discriminatory simply by reason of there being a statutory requirement mandating that policy. In effect, the Tribunal held that federal legislation is inoperative to the extent it conflicts with the Canadian Human Rights Act .
19. The Tribunal was, in my view, correct in coming to that conclusion. In Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150, this Court came to a similar conclusion with respect to a provision concerning mandatory retirement. McIntyre J., writing for the Court, said (at p. 156):
Section 50 of The Public Schools Act of 1980 cannot be considered a later enactment having the effect of creating an exception to the provisions of s. 6(1) of The Human Rights Act.
In any event, I am in agreement with Monnin C.J.M. where he said:
Human rights legislation is public and fundamental law of general application. If there is a conflict between this fundamental law and other specific legislation, unless an exception is created, the human rights legislation must govern.
This is in accordance with the views expressed by Lamer J. in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145. Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, or amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement.
20. In the present appeal, the provisions of the Canada Labour Code and Regulations thereunder do not create an exception to the provisions of the Canadian Human Rights Act . The wearing of safety helmets by Sikhs, a requirement which has a prima facie discriminatory effect, is a matter governed by the Canadian Human Rights Act , not the Canada Labour Code , where the requirements of the two Acts conflict. Thus, even if the safety helmet policy is necessary under the Canada Labour Code and Regulations, it does not follow that the policy is ipso facto a bona fide occupational requirement for the purpose of the Canadian Human Rights Act . Accordingly, the Tribunal had jurisdiction to order the employer to grant Mr. Bhinder an exemption from the safety helmet policy on the ground the policy did not meet the requirements of s. 14(a) of the Act.
IV
Would Exempting Mr. Bhinder from the Safety Helmet Requirement Lead to Undue Hardship on the Part of Canadian National?
21. The Tribunal found the respondent would not be subject to undue hardship if it exempted Mr. Bhinder from the safety helmet requirement. The respondent could not, therefore, successfully invoke the bona fide occupational requirement defence. The Tribunal began with the proposition that "the mere fact that an employees' [sic] religion causes some imposition on an employer does not automatically justify discrimination on that basis. The employer must show that the accommodation of the employees' religious beliefs or practices would cause it undue hardship". It continued: "In the case before this Tribunal, there is little evidence that any hardship will fall on Canadian National Railways if it accommodates Mr. Bhinder's religious beliefs, at least from a practical point of view. There are no administrative difficulties foreseeable if Mr. Bhinder were to continue working without a hard hat".
22. The Tribunal based its decision on a number of findings of fact concerning the potential consequences of Mr. Bhinder not wearing a safety helmet. These are summarized as follows:
1. There was no shortage of maintenance electricians;
2. Mr. Bhinder was not a unique or specialized employee;
3. The respondent's safety policy would not be jeopardized by giving Mr. Bhinder an exemption;
4. Mr. Bhinder was willing to relocate to a post where a safety helmet was not necessary, though he was not willing to assume duties other than those of a maintenance electrician;
5. Mr. Bhinder was able to perform effectively and efficiently without a safety helmet;
6. Neither Mr. Bhinder's fellow employees, nor the general public would be injured by Mr. Bhinder's failure to wear a safety helmet;
7. The risk of injury to Mr. Bhinder if he did not wear a safety helmet was negligible.
23. Interference with the Tribunal's findings of fact is authorized only if, pursuant to s. 28(1) (c) of the Federal Court Act , the Tribunal "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it". The respondent submits that the Tribunal's finding that the increased risk to Mr. Bhinder, if he did not wear a safety helmet, was negligible, is not supported by the evidence and is, indeed, contrary to some of the evidence. I agree with Le Dain J. in the Federal Court that, even assuming the Tribunal erred on this point, the error was not of the kind described in s. 28(1) (c) of the Federal Court Act . As a general rule, a reviewing court should be extremely hesitant to disturb the findings of fact of a tribunal. Tribunals have the benefit of being able to assess the credibility of witnesses and other factors which are not apparent on reviewing transcripts of the evidence. Even assuming arguendo that the Tribunal erred in assessing the safety factor, I do not believe such error was "made in a perverse or capricious manner or without regard for the material before [the Tribunal]". This Court should not disturb the Tribunal's findings of fact.
24. With respect to the financial hardship of Canadian National in the event of an injury to Mr. Bhinder as a result of his not wearing a safety helmet, the Tribunal concluded the potential additional costs of an exemption from its safety helmet policy in favour of the complainant, and Sikhs in general, was de minimis and, therefore, did not constitute undue hardship. According to the Tribunal:
The Respondent is a Schedule 2 employer under the Workmen’s Compensation Act, that is, it pays compensation directly to its injured employees, and as such, if an employee's risk of injury is increased, the likelihood of receiving compensation correspondingly increases, and as a result, the employer's liability to pay compensation consequentially increases. Thus, the potential costs to the Respondent, if Mr. Bhinder is granted an exemption from the hard hat policy, are not de minimis in a quantitative sense. However, in our view, given the size and nature of schedule 2 employers, such costs are de minimis to such employers.
The Tribunal continued that, even if the added costs were not de minimis, the risk to Mr. Bhinder if he did not wear a safety helmet was inherent to his employment since the alternative to that risk would have been a denial of religious freedom. The policy behind the worker's compensation scheme is to ensure that liability for risk inherent to employment is borne by employers. Such liability would not, therefore, have constituted undue hardship on the part of the respondent.
25. This Court should not disturb the Tribunal's findings on the question of potential financial hardship as a result of Mr. Bhinder's not wearing a safety helmet. The Tribunal did not, in my view, err in law or in fact, for the purpose of s. 28 of the Federal Court Act , in finding the potential increase in the cost of worker's compensation to the respondent was, for an employer the size of Canadian National, de minimis and therefore not unduly hard on the employer. As the basis of the Tribunal's decision was the finding that the cost of exempting Mr. Bhinder from the safety helmet policy was de minimis, it is not, in my view, necessary to review the Tribunal's understanding of the law assuming the cost was not de minimis.
26. As a general rule, this Court should be reluctant to interfere with a Tribunal's understanding of "undue hardship" for the purpose of determining if the bona fide occupational requirement has been satisfied unless there is a clear error of law or an erroneous finding of fact which satisfied s. 28(1) (c) of the Federal Court Act . I agree with Le Dain J. in the Federal Court of Appeal at pp. 561‑62:
... the Court should not lightly interfere with what is essentially a question of human rights policy in the application of the principles or criteria which Human Rights Tribunals have developed as a distinct body of jurisprudence in what is a relatively new field.
These words are germane with respect to the Tribunal's decision that the respondent would not suffer undue financial hardship if Mr. Bhinder was exempted from the hard hat rule. On all of the evidence, the Tribunal came to the conclusion that exempting Mr. Bhinder from the safety helmet requirement would not impose undue hardship on the respondent. Therefore, the failure to accommodate Mr. Bhinder by allowing him to work without a safety helmet meant that the respondent could not rely on the bona fide occupational requirement defence. In coming to this decision the Tribunal did not error in law or fact in such a way as to justify interference with its decision by a reviewing court.
V
Conclusion
27. The safety helmet policy of the respondent is not a bona fide occupational requirement in respect of its application to Mr. Bhinder. Accordingly, this appeal should be allowed with costs throughout and the order of the Human Rights Tribunal restored.
The reasons of Beetz and Wilson JJ. were delivered by
28. Wilson J.‑‑I have had the benefit of the reasons of both McIntyre J. and the Chief Justice and the difference between them, it seems to me, hinges on the meaning to be given to the phrase bona fide in s. 14(a) of the Act. If bona fide is used in the section simply to mean a genuine occupational requirement, i.e., that the wearing of a hard hat is as an objective factual matter a requirement for the appellant's job, then it seems to me that the Tribunal implicitly found that it was. The Tribunal, however, and the Chief Justice agrees, found that that was not what the legislature intended by bona fide. It intended that the bona fides of an occupational requirement be assessed in relation to each employee. The same occupational requirement might be bona fide vis‑à‑vis X but not vis‑à‑vis Y. By taking this approach the same result can, of course, be reached as if the section were not in the Act at all since, absent the section, the employer is obliged to accommodate the individual employee up to the point of undue hardship even if the requirement is a bona fide occupational one: see Ontario Human Rights Commission and O’Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536 (judgment delivered concurrent herewith). If the employer fails to do so, it is discriminating under the Act. The Tribunal finds that, if it fails to do so, its occupational requirement is not bona fide vis‑à‑vis that employee within the meaning of s. 14 (a).
29. With respect, I do not think it is open to us under the statute to give the words bona fide a meaning which would have the effect of nullifying a provision which says that an employer will not be guilty of a discriminatory practice if the requirement he attaches to the job is a genuine requirement of that job. The purpose of s. 14 (a) seems to me to be to make the requirement of the job prevail over the requirement of the employee. It negates any duty to accommodate by stating that it is not a discriminatory practice. I agree with McIntyre J. that discrimination is per se victim related but the occupational requirement is job related. This is, I believe, why s. 14 (a) provides that a genuine occupational requirement is not a discriminatory practice as opposed to making it a defence to a charge of discrimination which would enable the employer to establish that he had discharged his duty to accommodate the particular complainant up to the point of undue hardship.
30. The legislature, in my view, by narrowing the scope of what constitutes discrimination has permitted genuine job‑related requirements to stand even if they have the effect of disqualifying some persons for those jobs. This was a policy choice