Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Civil rights ‑‑ Discrimination on basis of age ‑‑ Mandatory retirement ‑‑ Police officer ‑‑ Defence of bona fide occupational requirement ‑‑ Board of Inquiry finding that mandatory retirement at age 60 for police officers not a bona fide occupational requirement ‑‑ Whether Board properly applied subjective and objective tests for a bona fide occupational requirement ‑‑ Ontario Human Rights Code, R.S.O. 1980, c. 340, s. 4(6).
A police officer who was obliged to retire at age 60 filed a complaint with the Ontario Human Rights Commission alleging that the age 60 mandatory retirement contravened the 1980 Ontario Human Rights Code on the grounds of age discrimination. The mandatory retirement policy had been adopted, and later included in the collective agreement, in response to the demands of the police union. The Board of Inquiry held that the age 60 mandatory retirement for police officers was not justified as a bona fide occupational requirement ("BFOR") under the Code. The Board found that neither the subjective nor the objective test for a BFOR had been satisfied. With respect to the subjective test, the Board concluded that while the policy was not adopted for any ulterior purpose, it was not established that, at the time of its adoption, the employer had a sincerely held belief that the policy was imposed in the interests of the adequate performance of the work. Applying the objective test, the Board concluded that the policy was not reasonable, stating that while the scientific evidence relating to the risk of cardiovascular disease and lack of aerobic capacity supported the reasonableness of the rule, the risk could be avoided by individual accommodation in the form of adjustments to the work of those in the risk category. Both the Divisional Court and the Court of Appeal upheld the Board's decision.
Held: The appeal should be allowed. The mandatory retirement policy is justified as a BFOR.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The purpose of the subjective element for a BFOR is to ensure that a discriminatory rule was adopted for a valid reason, as an occupational requirement, and not for a prohibited, discriminatory reason. Usually, this goal will be realized and the subjective element established by evidence that the employer honestly believed that the qualification or requirement was necessary for the safe and/or effective carrying out of the work. In this case, in insisting on evidence as to the employer's state of mind, the Board and the courts below applied the subjective test too rigidly against the employer. In some circumstances, the subjective element can be satisfied when, in addition to satisfying the objective test, the employer establishes that the rule or policy was adopted in good faith for a valid reason and without any ulterior purpose that would be contrary to the goals of the Ontario Human Rights Code. Thus, in a case in which the work‑related requirement is the result of a union‑driven term in a collective agreement, if both parties acted in good faith and arrived at an agreement that is shown to be reasonably necessary so as to satisfy the objective test, an employer can satisfy the subjective element without proof of a sincerely held belief in the necessity of the requirement. In such a case, however, the term in the collective agreement must not have been adopted for an ulterior or discriminatory purpose by the union. Here, the Board found that the employer acted honestly and without an ulterior motive in entering into the collective agreement. Since there is no suggestion that either the employer or the union was motivated by any ulterior motive, the purpose of the subjective test is satisfied.
With respect to the objective test, it is an error to equate individual accommodation with the requirement relating to reasonable alternatives. The latter is fundamental to the concept of a BFOR defence. Justification of a general rule that treats all employees as having the same characteristics, notwithstanding that some will not, is dependent on proof that it was not practical to identify and exempt from the general rule those who lacked the requisite characteristics. Since the Board found that individual testing was not feasible, the employer had discharged the obligation of showing that individual assessment was impractical and, therefore, a general rule was necessary. The alternative of individual accommodation is an impermissible extension of the principles in Bhinder, Saskatoon and Alberta Dairy Pool and is inconsistent with the concept of a BFOR defence as explained in those cases. It is an alternative that requires that the circumstances of each employee to whom the rationale of the rule applies be examined and that each employee's duties be adjusted so as to render the rule unnecessary. This alternative does not respond to the question as to why a general rule which includes some who do not share the common characteristics was necessary. There was a preponderance of evidence in this case to support a finding that the combination of the risk of cardiovascular disease and the decline of aerobic capacity discharged the employer's obligation with respect to the objective element of the BFOR. Subject to the influence of the concept of individual accommodation, the Board's reasons should be interpreted as having made this finding.
Both the subjective and the objective elements of a BFOR defence having been established, the appellants are entitled to a dismissal of the complaint.
Per L'Heureux‑Dubé and McLachlin JJ.: The Board did not import elements of the objective test into the subjective test. The Board was not interested in whether the appellants' reason for implementing the retirement policy was rational per se. Its concerns were whether there was any evidence of a "sincerely held belief" that the retirement policy was necessary in the interest of the adequate performance of police force work. Such a determination was clearly envisaged as a legitimate component of the subjective test.
Where a policy has been adopted as part of the collective bargaining process, in response to demands by the employees, it is the "sincerely held belief" of the employees that the policy was necessary which is more relevant to the subjective test. The employer often will not have a "sincerely held belief" that the policy is needed, other than a belief that it is needed to satisfy the union. However, the absence of improper motives on the part of employees and management cannot alone be sufficient to meet the subjective test. A general occupational requirement cannot be considered to be bona fide, within the meaning of human rights legislation, if it was adopted blindly or without due regard for the individual rights of the persons affected. Therefore, where a general occupational requirement is adopted at the behest of employees, such requirement satisfies the subjective test if (1) there is no evidence of ulterior or discriminatory motive on the part of the employees in demanding the requirement; (2) the employees turned their minds to the question of whether the requirement was warranted, in light of its potentially discriminatory nature, and possessed a "sincerely held belief" in its necessity; and (3) the employer turned its mind to the question of whether the requirement was warranted, in light of its potentially discriminatory nature, and did not have an ulterior or discriminatory motive in acquiescing in the employees' demand. Had the Board applied the correct principles of law in this case, the impugned provision would satisfy the subjective test.
The objective test is also satisfied. While the possibility of accommodation is not relevant once a BFOR is established, it is relevant to the determination of whether a rule constitutes a BFOR. In this case, however, it was not demonstrated that accommodation would have been possible. Moreover, sufficient evidence was presented to justify the mandatory retirement provisions as reasonable in light of the duties performed by police officers.
Cases Cited
By Sopinka J.
Referred to: Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; University of British Columbia v. Berg, [1993] 2 S.C.R. 353.
By L'Heureux‑Dubé J.
Referred to: Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.
Statutes and Regulations Cited
Human Rights Code, R.S.O. 1990, c. H.19, s. 24(2).
Human Rights Code, 1981, S.O. 1981, c. 53, s. 41(3).
Ontario Human Rights Code, R.S.O. 1980, c. 340, s. 4(1)(g), (6).
APPEAL from a judgment of the Ontario Court of Appeal (1993), 16 O.R. (3d) 385, 68 O.A.C. 136, 110 D.L.R. (4th) 435, 94 C.L.L.C. ¶ 17,005, 22 C.H.R.R. D/155, 1 C.C.E.L. (2d) 195, 20 Admin. L.R. (2d) 195, dismissing the appellants' appeal from a judgment of the Divisional Court (1992), 9 O.R. (3d) 104, 56 O.A.C. 10, 92 D.L.R. (4th) 565, 92 C.L.L.C. ¶ 17,027, 17 C.H.R.R. D/17, 43 C.C.E.L. 272, which dismissed the appellants' appeal from a decision of a board of inquiry under the Ontario Human Rights Code (1990), 14 C.H.R.R. D/138. Appeal allowed.
John W. T. Judson and Sandra L. Coleman, for the appellants.
Kim Twohig and Elaine Atkinson, for the respondent the Ontario Human Rights Commission.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
1 Sopinka J. -- This appeal involves interpretation of the bona fide occupational requirement or qualification ("BFORQ") justification of employment discrimination under s. 4(6) of the old Ontario Human Rights Code, R.S.O. 1980, c. 340. At the Board of Inquiry hearing, the appellant employer conceded that the age 60 mandatory retirement clause in the governing collective agreement constituted a prima facie violation of s. 4(1)(g) of the Code, but resisted the complaint on the basis of the BFORQ defence contained in s. 4(6). At issue is the content of the subjective and objective elements of the BFORQ defence.
I. Facts
2 Albert Large was a police officer in the City of Stratford from 1967 until 1981. In 1981, at age 60, he was obliged to retire under the terms of the collective agreement between the Board of Police Commissioners and the Police Association. He was granted a discretionary three-month extension and retired under the mandatory retirement policy at the end of this extension.
3 The evidence at the inquiry was unfortunately incomplete as to the events leading up to and rationale for including the mandatory retirement age in the collective agreement. Yet, it is clear that the Police Association advanced age 60 mandatory retirement pension benefits, and that the Board of Police Commissioners resisted this bargaining demand. In 1971, negotiations resulted in an arbitration award. This included a term for pension contributions to be "continued", based on compulsory retirement at age 60 for all members of the police force except civilian members. The Board of Inquiry found that the appellant employer did not introduce the mandatory retirement policy as a direct consequence of the arbitration award but rather as a result of the demands of the Police Association. These demands and their negotiation by the Police Association occurred while Large was president from 1973 until 1976. There was some delay in formally including the policy in the collective agreement, which was agreed to in principle around 1973, but in 1976, a mandatory age 60 retirement provision was expressly included in the collective agreement.
4 When he retired, Large sent a letter to the Board of Police Commissioners indicating he would have liked to have continued working and some time later, after consultation with the Ontario Human Rights Commission, sent a letter to the Board of Police Commissioners requesting reinstatement, but the latter took no action in response to this request. Large filed a complaint with the Ontario Human Rights Commission alleging that the age 60 mandatory retirement provision in the collective agreement contravened the 1980 Ontario Human Rights Code on the grounds of age discrimination.
5 At the Board of Inquiry hearing, the appellants, the City of Stratford, the Stratford Police Department, and the Board of Police Commissioners, conceded that the age 60 mandatory retirement policy prima facie violated the Ontario Human Rights Code. The case turned on whether this policy was a BFORQ. The Board of Inquiry heard conflicting medical evidence regarding the age 60 retirement for police officers. This involved evidence related to the cardiovascular system, muscular system, sensory system, mental functioning, and psychological reaction of persons over age 60. The Board also heard individual testimony of seven police officers as to their belief that officers over age 60 cannot as a rule perform to an acceptable level. The hearing took place over 15 days.
6 On November 21, 1990, the Board found that the mandatory age 60 retirement age for police officers was not a justified BFORQ when the employer forced retirement of the complainant at age 60: (1990), 14 C.H.R.R. D/138. The appellants appealed to the Ontario Court (General Division), Divisional Court. A majority of that court dismissed the appeal on June 8, 1992: (1992), 9 O.R. (3d) 104, 56 O.A.C. 10, 92 D.L.R. (4th) 565, 92 C.L.L.C. ¶ 17,027, 17 C.H.R.R. D/17. The appellants appealed further to the Ontario Court of Appeal which unanimously dismissed the appeal on December 22, 1993: (1993), 16 O.R. (3d) 385, 68 O.A.C. 136, 110 D.L.R. (4th) 435, 94 C.L.L.C. ¶ 17,005, 22 C.H.R.R. D/155, 1 C.C.E.L. (2d) 195, 20 Admin. L.R. (2d) 195. This Court granted leave to appeal on June 2, 1994, [1994] 2 S.C.R. vi.
II. Relevant Statutory Provisions
7 The respondent complainant's substantive rights are determined by the following provision in the Ontario Human Rights Code, R.S.O. 1980, c. 340:
4.-- (1) No person shall,
. . .
(g) discriminate against any employee with regard to any term or condition of employment,
because of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin of such person or employee.
(6) The provisions of this section relating to any discrimination, limitation, specification or preference for a position or employment based on age, sex or marital status do not apply where age, sex or marital status is a bona fide occupational qualification and requirement for the position or employment. [Emphasis added.]
8 The respondent complainant's procedural rights are determined by the following provision in the Human Rights Code, 1981, S.O. 1981, c. 53:
41. . . .
(3) An appeal under this section may be made on questions of law or fact or both and the court may affirm or reverse the decision or order of the board of inquiry or direct the board to make any decision or order that the board is authorized to make under this Act and the court may substitute its opinion for that of the board.
III. Judgments Below
A. Board of Inquiry (per Professor Kerr)
9 Relying on this Court's decision in Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202, the Board held that an employer relying on a bona fide occupational requirement defence must establish a subjective and objective element. Dealing with the subjective element, the Board observed that it involves a sincerely held belief that the impugned rule 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".
10 In the opinion of the Board of Inquiry, no evidence was adduced that, at the time of adoption of the mandatory retirement policy, the Board of Police Commissioners had a sincerely held belief that the policy was imposed in the interests of the adequate performance of the work. Nevertheless, the policy was not adopted for any ulterior purpose and the Board of Police Commissioners, at the time of the hearing, possessed the necessary belief to satisfy the subjective element. The Board of Inquiry expressly found that the policy was adopted in response to the demands of the Police Association. This occurred in the period that the respondent complainant was president of the Police Association. In the absence of evidence that, at the time of adoption the appellant employer had the necessary sincerely held belief, this aspect of the subjective test was held not to have been satisfied.
11 With respect to the objective test, while the scientific evidence which relates to the risk of cardiovascular disease and lack of aerobic capacity supported the reasonableness of the rule, the risk could be avoided by individual accommodation in the form of adjustments to the work of those in the risk category. On this basis, the mandatory retirement policy was not reasonable. The Board held that individual testing with respect to these two factors was not practical or reasonable. This disposed of the first phase of the inquiry only. The remedy phase was postponed pending settlement or a further application to the Board.
B. Divisional Court
1.Majority (per Campbell J., Callaghan C.J.O.C. concurring)
12 Campbell J. agreed with the finding that the employer acted in good faith and that "there is no suggestion of any ulterior or hidden motive" (p. 110 O.R.). Having regard to the standard of review, while it may have been open to the Board to have reached a different conclusion, Campbell J. found no basis upon which to disturb the Board's finding that the subjective test had not been satisfied. The critical time with respect to the employer's state of mind was the date upon which the policy was enforced.
13 With respect to the objective test, while the Board erred in holding that there is a duty to accommodate in a case of direct discrimination, this was a matter of semantics. The decision of the Board could be upheld in law on the basis that individual accommodation was a reasonable alternative. The latter is a component of the test relating to the justification of direct discrimination.
2. Dissent (Zuber J.)
14 Zuber J. did not deal with the standard of review applicable in this case since he was of the opinion that the decision of the Board contained errors in law sufficient to warrant reversal of the decision. The errors of law consisted of:
(i)too rigid an application of the subjective test;
(ii)diluting the impact of the scientific evidence on the basis of a duty to accommodate.
C.Ontario Court of Appeal (per Morden A.C.J.O., Grange and Austin JJ.A.)
15 The Divisional Court did not err in according curial deference to the findings of fact of the Board of Inquiry. This case is governed by Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, and University of British Columbia v. Berg, [1993] 2 S.C.R. 353. Essentially, the deference which the courts should give to findings of fact by human rights tribunals is based chiefly on their function and role as the tribunal of first instance which sees and hears the witnesses, both lay and expert.
16 The court agreed with the majority in the Divisional Court in its application of the subjective test in Etobicoke. It was not necessary to deal with the submission that the Divisional Court erred in introducing a duty to accommodate into the objective test in Etobicoke. In this regard, the court noted that it was inclined to agree with the Divisional Court's analysis that if there is a reasonable alternative to a policy of direct discrimination, that policy is not reasonable and thus not bona fide.
IV. Issues on Appeal
1.Subjective element of BFORQ test: What must be shown to satisfy the subjective test of a bona fide occupational requirement?
2.Role of reasonable accommodation in objective test for a BFORQ: What is the role of reasonable accommodation in the objective test of a bona fide occupational requirement?
17 As a preliminary matter, I note that since the respondent complainant's mandatory retirement occurred in 1981 before the coming into force of the Human Rights Code, 1981, the Board of Inquiry determined that the substantive rights of the parties would be based on the 1980 Ontario Human Rights Code, with procedural questions to be determined by the 1981 Code. I proceed on this basis as well. The wording of the BFORQ in the 1980 Code differs from the current wording of the Code. The latter now provides, after an amendment in 1986, that a limitation on non-discrimination employment rights will not constitute a BFORQ unless the Ontario Human Rights Commission, a board of inquiry, or a court is "satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any": Human Rights Code, R.S.O. 1990, c. H.19, s. 24(2); amendment made in S.O. 1986, c. 64, s. 18(15). The 1980 Code made no reference to a duty to accommodate.
V. Analysis
1. Subjective Test
18 The basic definition of the subjective arm for a BFORQ was set out in Etobicoke, supra, at p. 208. The complainants, firefighters with the Etobicoke municipality, alleged that an age 60 mandatory retirement age provided for in their collective agreement offended the Code by discriminating against certain employees on the basis of age. Writing for the Court, McIntyre J. defined the subjective arm of the BFORQ test as follows:
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.
The respondent Commission submits that the subjective component of the BFORQ requires that the employer prove each of the following three elements:
(a)imposed honestly, in good faith; and
(b)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
(c)not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code.
The respondent Commission submitted that although the appellant employer may have met (a) and (c), it did not adduce sufficient evidence of (b), a sincerely held belief that the limitation was imposed in the interests of the adequate performance of the work involved.
19 Often, in cases involving a BFORQ, as in Etobicoke, supra, the complainant will concede that the limitation was established in good faith. In this appeal, however, no such concession was made. At the Board of Inquiry hearing, Professor Kerr held that both the subjective and objective tests for a BFORQ had not been met. The subjective test, in his view, required evidence as to the employer's actual subjective belief in the rationale for adopting the mandatory retirement policy. This was considered to involve more than just proving no ulterior or bad faith motive. This was upheld in the two appellate courts below.
20 The Board and the courts below, therefore, proceeded on the basis that the state of mind of the employer was an indispensable element of the subjective test. Notwithstanding that the employer in this case acted in good faith without any ulterior motive in adopting a policy that was in the interests of the safe and efficient performance of the work, the subjective test required evidence that the employer had a sincerely held belief that the policy was necessary for this purpose at the time it was adopted.
21 The subjective element is one of two parts of the test for a BFORQ because of the statutory requirement that the occupational qualification or requirement be bona fide. The purpose of the subjective element is to ensure that a discriminatory rule was adopted for a valid reason, as an occupational requirement, and not for a prohibited, discriminatory reason. It ensures that the employer is not attempting to defeat the purposes of the Code, in short, that the employer does not have a discriminatory motive. Usually, this goal will be realized and the subjective element established by evidence that the employer honestly believed that the qualification or requirement was necessary for the safe and/or effective carrying out of the work.
22 In my view, however, the Board and the courts below applied the subjective test too rigidly against the appellant employer in the circumstances of this case. It would be too formalistic to invariably insist on evidence as to the employer's state of mind when, objectively, the impugned rule or policy is adopted for valid occupational reason and the purpose of the subjective element of the test is otherwise accomplished. In some circumstances the subjective element can be satisfied when, in addition to satisfying the objective test, the employer establishes that the rule or policy was adopted in good faith for a valid reason and without any ulterior purpose that would be contrary to the purposes of the Code.
23 For example, it should be possible for an employer to satisfy the subjective element without proof of a sincerely held belief in the necessity of the work-related requirement in a case in which the requirement is a result of a union-driven term in a collective agreement. If both parties are acting in good faith and as a result of negotiations arrive at an agreement that is shown to be reasonably necessary so as to satisfy the objective test, it appears unproductive to insist on scrutinizing the negotiations to determine whether one party or the other genuinely believed in the necessity of the provision. I do not understand how it advances the cause of human rights to invalidate a sensible, work-related rule supported by the employees and adopted in good faith by the employer because the latter had mental reservations about its desirability. The submission on behalf of the respondents was that a subjective belief in the desirability of the requirement would ensure that employers turn their minds towards other alternatives and thus discrimination would occur less frequently. But, there would be no logical advantage in requiring the employer to search for reasonable alternatives to the union's urging or insistent request, when objectively there were no such alternatives. I believe, however, that it is a logical caveat to the above that the term in the collective agreement must not have been adopted for an ulterior or discriminatory purpose by the union.
24 I have considered the comments of L'Heureux-Dubé J. in her reasons for judgment. She would substitute the sincerely held belief of "employees" for that of the employer. The difficulty with this approach is how to ascertain the belief of the employees at the critical time when the impugned rule is adopted. The employees do not act in unison. They may be divided. The difficulties with this approach are aptly illustrated in this case. The Board refers in the evidence to four employees who were called. Two of the employees testified that they supported the mandatory retirement policy at the time but their evidence did not indicate a sincerely held belief that it was necessary for the safe and efficient execution of the work. Two other employees testified as to their present views but not as to the reasons for adoption of the policy at the time. In my view, it would be impossible on this evidence to come to the conclusion as my colleague does that "the employees" had the necessary sincerely held belief. The Board could not make this finding and neither can we. In my opinion, the fact that the employer and the bargaining agent of the employees acting in good faith and without any improper motive entered into a collective agreement is preferable than attempting to ascertain what were the views of employees after the fact.
25 With respect to my colleague's concern that the standard that I propose might enable an employer to adopt an all-males policy because it was considered normal, I find it difficult to envisage a situation where such a policy could be justified on an objective basis unless the work were in fact shown to be such that only males could safely do the job. Although theoretically possible, this would be an exceptional case. In such a case, however, I fail to appreciate how imposing the additional requirement of the belief of the all-male employees would operate to protect human rights. It would not be surprising to find that, where it is objectively proved that the work can only be performed safely and efficiently by males and the rule is included in a collective agreement, both the employer and employees believe that the rule is necessary.
26 Applying these principles to this appeal, the Board of Inquiry found that the appellant employer acted honestly and without an ulterior motive in entering into the collective agreement. The employees, through their representatives, favoured the mandatory age 60 retirement policy. Indeed, in the early 1970's when the policy was advanced by the Police Association, the respondent, Large, was a secretary of the Police Association from 1970 to 1973, and president from 1973 to 1976. According to evidence adduced at the inquiry, the Police Association members were concerned about better pensions, and there was some evidence that concern as to the safe and healthy performance of the job was part of the reason for advancing and adopting the policy. There is no suggestion that either the appellant employer or the union was motivated by any ulterior motive. The purpose of the subjective test is therefore satisfied. Accordingly, assuming that this policy meets the objective test, it will be justified as a BFORQ.
2. Role of Reasonable Accommodation in Objective Test for a BFORQ
27 The second part of the BFORQ test as set forth in Etobicoke, supra, at p. 208, is the objective branch:
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.
The issue is whether this objective arm of the BFORQ test incorporates a duty on the part of the employer to accommodate individuals by adjusting their duties so as to avoid the risk which the mandatory retirement policy seeks to address.
28 The reasons of the Board correctly point out that in Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, this Court held that once a BFORQ defence has been made out there is no duty to accommodate and that this principle was reaffirmed with respect to direct discrimination in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489. The Board, however, went on to add that "in the assessment of a bona fide occupational qualification or requirement, the question of reasonableness should include consideration of the possibility of accommodation" (p. D/141). This extension to the principles enunciated in Bhinder and Alberta Dairy Pool was applied by the Board to require individual accommodation of the police officers who had reached the age of 60 and were, therefore, susceptible to the risks which the mandatory retirement rule sought to avoid. On this basis the Board found that the mandatory retirement policy failed the objective test.
29 The Divisional Court characterized this aspect of the Board's reasons as an unfortunate use of the words "reasonable accommodation" but in its opinion this was simply a different way of expressing the requirement recognized in Alberta Dairy Pool and Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297, that the employer negative the existence of reasonable alternatives to the rule. The Court of Appeal was inclined to agree with the majority of the Divisional Court in this respect.
30 In my opinion it was an error to equate individual accommodation with the requirement relating to reasonable alternatives. The latter is a requirement that is fundamental to the concept of a BFORQ defence. Justification of a general rule that treats all employees as having the same characteristics, notwithstanding that some will not, is dependent on proof that it was not practical to identify and exempt from the general rule those who lacked the requisite characteristics. As Wilson J. stated in Alberta Dairy Pool, at p. 513:
. . . justification of a rule manifesting a group stereotype depends on the validity of the generalization and/or the impossibility of making individualized assessments.
31 Alberta Dairy Pool was preceded by this Court's decision in Saskatoon in which a rule requiring firefighters to retire at age 60 was upheld. A principal attack on the rule was made on the ground that individual testing was a reasonable alternative to the general mandatory retirement rule. The rationale for exploring reasonable alternatives is explained in the judgment of this Court at pp. 1309-10:
This test obliges the employer to show that the requirement, although it cannot necessarily be justified with respect to each individual, is reasonably justified in general application. This interpretation was reaffirmed in Bhinder v. Canadian National Railway Co., supra, per McIntyre J. at p. 589, and per Wilson J. at p. 580. The dichotomy between an individualized approach and an approach based on average characteristics is of the very essence of a defence of this kind. The general philosophy of human rights legislation is that persons are not to be judged or dealt with on the basis of external characteristics such as race, age, sex, etc., but on individual merit. That is the general rule, and violation of it constitutes discrimination. As pointed out by McIntyre J. in Etobicoke, the defence of bona fide occupational qualification or requirement is an exception to the general rule. In the limited circumstances in which this defence applies, it is not individual characteristics that are determinative but general characteristics reasonably applied. It is important to bear in mind that we are speaking of a defence to a charge of discrimination. If an employer were required to show that each employee at age sixty is physically incapable of doing the work, there would be no necessity of a defence of reasonable occupational qualification or requirement. The employer in the circumstances to which I refer would have negated discrimination. That would be open to an employer in the absence of a provision such as s. 16(7) of the Code.
The judgment goes on to explain that an employer may fail to discharge the burden of showing that the rule is reasonable if he or she does not deal satisfactorily with the impracticality of justifying the rule with respect to each employee by individual testing.
32 In this case the Board found that individual testing was not feasible. In view of this finding, the appellant employer had discharged the obligation of showing that individual assessment was impractical and, therefore, a general rule was necessary. There was no suggestion that there might have been some other method of identifying those, if any, who had reached the age of 60 but were not in the risk category.
33 The alternative of individual accommodation by adjusting the duties of individual police officers is not an alternative that would serve to justify the rule on an individual basis by identifying those who do not share the characteristics which the rule addresses and to whom the underlying rationale of the rule does not apply. It is an alternative that requires that the circumstances of each employee to whom the rationale of the rule does apply be examined and that each employee's duties be adjusted so as to render the rule unnecessary. This is not an alternative which responds to the question as to why a general rule was necessary which includes some who do not share the common characteristic or characteristics. It is, therefore, an impermissible extension of the principles in Bhinder, Saskatoon and Alberta Dairy Pool and is inconsistent with the concept of a BFORQ defence as explained in those cases.
34 I am satisfied that there was a preponderance of evidence to support a finding that the combination of the risk of cardiovascular disease and the decline of aerobic capacity discharged the appellant employer's obligation with respect to the objective branch of the BFORQ. Indeed I interpret the Board's reasons as having made this finding subject to the influence of the Board's view that individual accommodation was required. I reproduce the relevant findings.
35 In dealing with the evidence of police officers the Board stated (at p. D/139):
The evidence did suggest there is a wide-spread belief among police officers that officers over age 60 cannot as a rule perform to an acceptable level. This belief is based in part on experience that the great majority of officers in fact choose to retire before age 60 and many of those retiring do so because they no longer feel able to continue with police work.
36 In reviewing the scientific evidence the Board observed as follows (at p. D/146):
On the other hand, there is some basis for supporting an age 60 mandatory retirement policy arising from the concerns as to cardiovascular disease and aerobic capacity. The import of the preceding review of these aspects is that, viewed separately and on the state of the evidence in this case, neither is sufficient to reasonably support an exclusion of persons over age 60 from employment as police officers. Since each of these factors provides some basis for a mandatory retirement rule, the combination does strengthen that support.
Moreover, there is some compounding of this support because of the possible interrelationship between limited aerobic capacity and cardiovascular problems. There is the possibility that an older officer might attempt activity beyond the officer's aerobic capacity and thereby complicate any existing cardiovascular weakness.
I am still not persuaded that the combination of these factors is sufficient to make age 60 retirement a bona fide occupational qualification and requirement. Since the restriction in aerobic capacity can be reasonably accommodated, the possible compounding of limitations on aerobic capacity and cardiovascular disease is avoidable. The failure to address the risk of cardiovascular disease except in the case of those over age 60 leaves unanswered the excessiveness of an exclusion from employment to a particular group. Thus, the combination of these factors really does not change the conclusion that this restriction fails to satisfy the reasonableness test.
37 I therefore agree with Zuber J., dissenting, that the impact of the evidence relating to the objective test was diluted by the concept of individual accommodation and that on a proper instruction on the law, the finding would have been in favour of the appellants. Accordingly, both the subjective and objective elements of a BFORQ defence having been established, the appellants are entitled to a dismissal of the complaint.
38 Finally, it is appropriate to observe that the complaint was dealt with more than nine years after the respondent Large was obliged to retire and more than eight years after the complaint was lodged. The appeal proceedings have consumed a further five years. Delay in human rights proceedings which often involve employment or living accommodation can have serious consequences for the applicant. In employment cases, reinstatement is a remedy that is frequently sought. A delay of several years can be prejudicial by reason of the hardship to the applicant whose employment has been terminated and, in cases involving discrimination on the basis of age, may affect the feasibility of the remedy. For example, if it were necessary to consider the remedy of reinstatement in this case, we would be dealing with an applicant who is now 75 years of age. In view of the fact that it is the aim of human rights legislation to provide a prompt and relatively inexpensive method of resolving complaints, the delay in this case is a cause for serious concern.
VI. Disposition
39 I would allow the appeal, set aside the decisions below and dismiss the complaint. The appellants did not ask for costs in their request for relief nor in their oral argument. There will, therefore, be no order as to costs.
The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by
40 L'Heureux-Dubé J. -- Although I agree with the result reached by my colleague Sopinka J., I have some concerns about his formulation of both the subjective and objective tests for a bona fide occupational requirement ("BFOR"), which is at the heart of this case.
41 At the outset, however, I do agree with the standard of review adopted by the Court of Appeal in the following terms:
In other words, it appears to us that the deference which the courts should give to findings of fact of human rights tribunals is based chiefly on their function and role as the tribunal of first instance which sees and hears the witnesses, both lay and expert.
We add, with the greatest respect, that we think this conclusion is in accord with long-accepted principles relating to both judicial and appellate review. Merely because there is a statutory right of appeal on questions of fact as well as law (which is the general position with respect to appeals in civil cases) and, also, a power in the court to substitute its view of the facts for that of the tribunal below (which is also common in civil cases: e.g., the appeal court "may . . . make any order or decision that ought to or could have been made by the court or tribunal appealed from": Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a)) does not mean that there is no room for deferring to the findings of fact of the body which had the signal advantage of seeing and hearing the witnesses, and which has experience in conducting statutory hearings in human rights cases.
((1993), 16 O.R. (3d) 385, at p. 389.)
42 The questions of law before the Board of Inquiry (the "Board"), which according to the jurisprudence of this Court must be answered correctly, relate to the proper test to be applied for a BFOR.
43 As regards the subjective test, the Board's articulation raises two questions. First, the appellants argue that the Board, by requiring the employer to show that it has a "rational basis" for imposing the discriminatory measure, has injected into the "subjective part of the test an element that is only properly considered at the second and objective stage" (appellants' factum, para. 73). Second, the appellants submit that, in the case of a long-standing restriction adopted by an employer as a result of employee demands through the collective bargaining process, it is inappropriate to require direct and convincing evidence of a "sincerely held belief". I shall consider each argument in turn.
44 First, I reject the appellants' argument that the Board improperly injected into the "subjective part of the test an element that is only properly considered at the second and objective stage". While I agree with the appellants that it would be an error of law to import into the subjective test elements of the objective test, I find that this is not what the Board actually did. Admittedly, the following statement by the Board suggests that it required proof of a rational basis for the mandatory retirement policy as a component of the subjective test:
There was . . . an onus on the respondents [the appellants in this case] to show that they actually had some rational basis for the policy. [Emphasis added.]
((1990), 14 C.H.R.R. D/138, at p. D/142.)
However, despite the unfortunate language chosen by the Board, I do not think that it meant to say that the objective rationality of the mandatory retirement policy should be examined as part of the subjective test. Specifically, if one carefully examines the Board's reasons with respect to the subjective test, one can see that it was not actually interested in whether the appellants' reason for implementing the retirement policy was rational per se. All it was interested in was whether there was any evidence of a "sincerely held belief" that the retirement policy was necessary in the interest of the adequate performance of police force work. Such a determination was clearly envisaged as a legitimate component of the subjective test. In Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202, McIntyre J. stated (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. [Emphasis added.]
45 This, of course, brings me to the second legal error alleged by the appellants. Specifically, they suggest that in the case of a long-standing restriction adopted by an employer as a result of employee demands through the collective bargaining process, it is inappropriate to require direct and convincing evidence of a "sincerely held belief" on behalf of the employer. On this point, the appellants submitted:
74. The collective bargaining process also must be considered when assessing the subjective test. Collective agreements represent carefully constructed and fairly negotiated bargains between employers and employees. These agreements cannot be readily dismissed from consideration. Cory J. in Dickason [v. University of Alberta, [1992] 2 S.C.R. 1103], stated at page 1133:
"It is safe to assume that the terms of the collective agreement pertaining to compulsory retirement were not the manifestation of an abuse of its power by the employer University. Rather, they represent a carefully considered agreement that was negotiated with the best interests of all members of the faculty association in mind."
. . .
76. Many policies are adopted by employers in the collective bargaining process without an ulterior motive, but also with a "neutral" state of mind on the part of the employer. Often policies of employers instituted as a result of reaction to outside pressures, such as collective bargaining, persist as the result of "institutional inertia." The Board's interpretation of the subjective test would make it impossible for any of these policies to be justified subsequently as a bona fide occupational requirement, even where there is objective justification for such a policy. In certain cases, such as the present case, such a consequence would be to the prejudice of hard-won protections negotiated by the employees for their collective benefit. The Board has transformed the straight forward requirement that an employer may not have a discriminatory motive and has given McIntyre J.'s formulation of this concept in Etobicoke a life far beyond what was intended or is necessary.
46 In general, I agree with these arguments put forward by the appellants. Where policies have been adopted as part of the collective bargaining process, in response to demands by the employees, it seems unfair to require that the employer prove a "sincerely held belief" that the provision was necessary. In such circumstances, the employer often will not have a "sincerely held belief" that the policy is needed, other than a belief that it is needed to satisfy the union. Consequently, where a restriction is imposed at the behest of the employees, it is the "sincerely held belief" of the employees which is more relevant to the subjective test.
47 At the same time, the absence of improper motives on the part of employees and management cannot alone be sufficient to meet the subjective test. I must therefore distance myself from my colleague Sopinka J.'s assertion that (at para. 23):
If both parties are acting in good faith and as a result of negotiations arrive at an agreement that is shown to be reasonably necessary so as to satisfy the objective test, it appears unproductive to insist on scrutinizing the negotiations to determine whether one party or the other genuinely believed in the necessity of the provision. I do not understand how it advances the cause of human rights to invalidate a sensible, work-related rule supported by the employees and adopted in good faith by the employer because the latter had mental reservations about its desirability.
Adopting such a standard would, in my view, have the effect of legitimizing discrimination. By way of example, the parties might agree to restrict certain kinds of employment to men only, on the basis of a possibly subconscious assumption that such limitations are "normal". Assumptions of this nature prevailed not so long ago in the recruitment of police officers and military personnel, and other examples of such discriminatory beliefs are numerous. Under the approach that my colleague proposes, restrictions based on unquestioned assumptions of this kind would meet the subjective test. This, in my opinion, goes against the purpose of human rights legislation.
48 It has often been said that the purpose of human rights legislation is to protect the right of each person to be dealt with on the basis of the person's individual characteristics rather than on the basis of ascribed, stereotypical group characteristics (see Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, at p. 358, per L'Heureux-Dubé J.). Since the BFOR derogates from this right, it must be narrowly construed so that the overall objects of the legislation are not frustrated. In particular, it is my view that a requirement cannot be considered to be bona fide, within the meaning of our laws against discrimination, if it was adopted blindly or without due regard for the individual rights of the persons affected. Human rights legislation will not tolerate unquestioned generalizations and assumptions.
49 For these reasons, where the parties to a collective agreement decide to include a general occupational requirement that may be prima facie discriminatory both parties must turn their minds to the question of whether the requirement is actually warranted, in light of its potentially discriminatory nature. It follows that, in circumstances where a restriction is adopted at the behest of employees, the restriction satisfies the subjective test if it meets the following three criteria:
(1)there is no evidence of ulterior or discriminatory motive on the part of the employees in demanding the requirement;
(2)the employees turned their minds to the question of whether the provision was warranted, in light of its potentially discriminatory nature, and possessed a "sincerely held belief" in its necessity; and
(3)the employer turned its mind to the question of whether the provision was warranted, in light of its potentially discriminatory nature, and did not have an ulterior or discriminatory motive in acquiescing in the employees' demand.
50 My colleague Sopinka J. expresses the view in his reasons that the beliefs of the employees would be difficult to determine. However, contrary to my colleague, I do not see why the usual evidentiary rules could not be applied in assessing the employees' beliefs.
51 The above analysis leads to the inevitable conclusion that the Board erred in law by focusing only on the question of whether the employer sincerely believed that the retirement policy was needed, and not focusing also on the state of mind of the employees, who demanded the policy be implemented. The Board should have considered whether the employees sincerely believed the policy was needed and whether they addressed their minds to the question of whether the policy was warranted, in light of its potentially discriminatory nature. After reviewing the evidence before the Board, I conclude that, if the correct principles of law were applied, the impugned provision would satisfy the subjective test. As a result, the Board's conclusion that the subjective test was not satisfied should be set aside.
52 I now turn to the objective test. In performing the objective test the Board addressed a preliminary legal question, holding that "in the assessment of a bona fide occupational qualification or requirement, the question of reasonableness should include consideration of the possibility of accommodation" (p. D/141). The Board then relied on this conclusion in holding that the objective test was not satisfied. Specifically, it stated (at p. D/146):
On the other hand, there is some basis for supporting an age 60 mandatory retirement policy arising from the concerns as to cardiovascular disease and aerobic capacity. The import of the preceding review of these aspects is that, viewed separately and on the state of the evidence in this case, neither is sufficient to reasonably support an exclusion of persons over age 60 from employment as police officers. Since each of these factors provides some basis for a mandatory retirement rule, the combination does strengthen that support.
Moreover, there is some compounding of this support because of the possible interrelationship between limited aerobic capacity and cardiovascular problems. There is the possibility that an older officer might attempt activity beyond the officer's aerobic capacity and thereby complicate any existing cardiovascular weakness.
I am still not persuaded that the combination of these factors is sufficient to make age 60 retirement a bona fide occupational qualification and requirement. Since the restriction in aerobic capacity can be reasonably accommodated, the possible compounding of limitations on aerobic capacity and cardiovascular disease is avoidable. The failure to address the risk of cardiovascular disease except in the case of those over age 60 leaves unanswered the excessiveness of an exclusion from employment to a particular group. Thus, the combination of these factors really does not change the conclusion that this restriction fails to satisfy the reasonableness test. [Emphasis added.]
53 In analysing the decision of the Board with respect to the objective test, it is necessary first to determine whether the possibility of accommodation is relevant in a case of direct discrimination.
54 The applicability of the "accommodation" doctrine to BFOR's has been the subject of some controversy. First, in Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, this Court held that there was no duty to accommodate a person who had been excluded by reason of a BFOR because such a duty was inconsistent with the existence of a BFOR. However, in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, Wilson J., for the majority, overruled Bhinder stating (at pp. 516-17):
. . . I am of the view that Bhinder is correct in so far as it states that accommodation is not a component of the BFOR test and that once a BFOR 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 [a BFOR], i.e., a defence that considers the rule in its totality. . . . 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.
55 The appellants rely on this case to support the argument that "accommodation" is not relevant in a case of direct discrimination such as the case at hand. Consequently, the appellants argue that the Board erred in law in considering the possibility of accommodation.
56 While I believe such an argument can be made on a narrow reading of Alberta Dairy Pool, I also believe that Alberta Dairy Pool can be read as permitting consideration of the possibility of accommodation in determining whether a restriction is reasonably necessary and thus qualifies as a BFOR. In other words, I agree that accommodation is not relevant once a BFOR is established; however, it may be relevant in determining whether or not a BFOR has been established. In this respect, I note that in Alberta Dairy Pool, Wilson J. stated (at p. 518):
If a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be bona fide.
In my view, this effectively opens the door to the consideration of the possibility of accommodation in deciding whether a restriction constitutes a BFOR. In this respect, I would adopt the findings of the majority of the Ontario Divisional Court that:
The words "reasonable accommodation" in the context of this case are just another way of saying that if there is a reasonable alternative to a discriminatory policy, the discriminatory policy is not reasonable. This common sense proposition was accepted in Dairy Pool at p. 518 S.C.R., p. 437 D.L.R.:
If a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be bona fide.
This proposition was also accepted in Saskatchewan Human Rights Commission v. Saskatoon (City) (the Saskatoon Firefighters case), [1989] 2 S.C.R. 1297, [1990] 1 W.W.R. 481, at pp. 1313-14 S.C.R., p. 492 W.W.R.:
If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it.
However one may parse the various judgments on reasonable accommodation, the Board did not err in law in adopting the common sense proposition that if there is a reasonable alternative to a policy of direct discrimination, that policy is not reasonable and, therefore, not bona fide within the meaning of the objective test in Etobicoke.
((1992), 9 O.R. (3d) 104, at p. 114.)
57 Nevertheless, while the availability of possibilities for accommodation is relevant to the determination of whether a rule constitutes a BFOR, I have considerable difficulty with the conclusions drawn by the Board. In my opinion, it was not demonstrated that accommodation would have been possible in the case at bar. Moreover, sufficient evidence was presented to justify the mandatory retirement provisions as reasonable in light of the duties performed by police officers.
58 In the result, on the facts of this case as found by the Board, and on a proper application of the law, I believe that the mandatory retirement policy was justified as a BFOR and I would consequently dispose of this appeal as suggested by my colleague Sopinka J.
Appeal allowed.
Solicitors for the appellants: Lerner & Associates, London.
Solicitor for the respondent the Ontario Human Rights Commission: The Attorney General for Ontario, Toronto.
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