Hope v. St. Catharines (City), 1986 CanLII 6542

Hope v. St. Catharines (City)

1986-12-05

Ontario Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE, 1970 and the ONTARIO HUMAN RIGHTS CODE, 1980 and the ONTARIO HUMAN RIGHTS CODE, 1981

George Hope v. Corporation of the City of St. Catharines and F. A. Barley

and

George Hope v. St. Catharines Professional Firefighters' Association, Local 485 and Glenn Jones

and

Jack Karr v. Corporation of the City of St. Catharines and F. A. Barley

and

Benjamin Whitney v. Corporation of the City of St. Catharines and F. A. Barley

and

Karl Boatman v. The City of Waterloo and Waterloo Fire Department

and

Peter Callen v. International Association of Firefighters, Local 455 and Earl Turpin-Carroll

and

Peter Callen v. Corporation of the City of Windsor and Kenneth G. Stewart and Larry McDonnell

Date of Decision: December 5, 1986

Before: John D. McCamus

Comm. Decision No.: 262

Appearances by: Michael Bader, Counsel for the Ontario Human Rights Commission Weir Milne, Counsel for George Hope and Jack Karr Douglas K. Gray and Michael A. Hines, Counsel for the Corporation of the City of St. Catharines and F. A. Barley William H. White, Counsel for the City of Waterloo and the Waterloo Fire Department Barry Halliwill, Counsel for the City of Windsor and Kenneth G. Stewart and Larry McDonnell Jeffrey Sack and James McDonald, Counsel for St. Catharines Professional Firefighters' Association, the Windsor Professional Firefighters' Association, Earl Turpin-Carroll and Glenn Jones

RETIREMENT — human rights legislation contravened — firefighters — BONA FIDE OCCUPATIONAL QUALIFICATION — age for firefighter — Etobicoke test — OCCUPATIONAL HEALTH AND SAFETY — age and potential impairment — safety risk to self and others — BUSINESS NECESSITY — discriminatory policy because of sufficient risk to safety — BURDEN OF PROOF — onus on respondent — COMPLAINTS — adequacy of complaint — EVIDENCE — impressionistic — medical evidence — statistical evidence

Summary: The Board of Inquiry dismisses the complaints of four firefighters in which they allege that their mandatory retirement at age 60 by the municipalities of St. Catharines, Waterloo, and Windsor constitutes discrimination contrary to Ontario human rights law. Ontario human rights laws prohibit discrimination up to age 65. Complaints were also filed against two locals of the Professional Firefighters' Association alleging that the union was complicit in the discrimination by agreeing to the mandatory retirement of its members at age 60 or by failing to obtain the removal of the discriminatory policies.

The Board rules that in order to establish that being of an age less than 60 is a bona fide occupational qualification for the position of firefighter, the respondent municipalities must satisfy both branches of the test set out by the Supreme Court of Canada in Etobicoke. They must show that the mandatory retirement was imposed in good faith and that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees or the public. Where there is a public safety dimension to the issue, as there is here, it must be determined whether there is sufficient risk of employee failure in those over the mandatory retirement age to warrant setting the mandatory retirement age at 60. In order to establish that the mandatory retirement is reasonably necessary, it is appropriate to determine whether all or substantially all persons over 60 cannot perform the job, or whether the qualification is such that individualized assessments of capacity to perform is impossible or impractical.

The Board finds that, though some of the complainants occupied senior positions in their fire departments, such as Deputy Chief, Platoon Chief, and Captain, all of them were involved in active firefighting duties.

A certain minimum level of physical fitness is a necessary requirement for firefighters to be able to engage in active firefighting. The necessary level of fitness can be assessed by measuring aerobic capacity and experts agreed on what the necessary level is.

The Board of Inquiry finds, on the evidence, that all or almost all individuals over 60 would not possess the aerobic capacity necessary for firefighting. The Board also accepts evidence that the incidence of coronary artery disease is higher among older persons and that this creates an increased risk of failure due to heart problems.

There are no methods of testing either aerobic capacity or propensity for coronary artery disease currently available which are sufficiently accurate and safe to be imposed as a substitute for compulsory retirement at 60.

The Board finds that the respondents have established that being of an age less than 60 is a bona fide occupational qualification for firefighters in St. Catharines, Waterloo, and Windsor. Because the bona fide occupational qualification is established, the unions have not violated human rights law by agreeing to the mandatory retirement age.

The complaints are dismissed.

Introduction

1The several complaints which form the subject matter of these proceedings all relate to the issue of mandatory retirement in the context of the occupation of firefighting. The complainants are all individuals who have been required to retire when they reached the age of 60 years, and it is their view that mandatory retirement at that age constitutes discrimination on the basis of age in a manner that is unlawful under the Ontario Human Rights Code. In this claim, they are supported by the Ontario Human Rights Commission which has essentially carried the burden of proving these claims on their behalf. Although the incidents giving rise to these complaints range over a substantial period of time and thus are brought respectively under the 1970, 1980 and 1981 versions of the Ontario Human Rights Code, it is the position of the complainants that there is no material difference on the question at issue here in the various versions of the Code under which the individual complaints have been initiated.

2In response, the respondent employers and respondent unions have conceded that mandatory retirement at age 60 constitutes what is generally referred to as a "bona fide occupational qualification" for the jobs of each of the complainants, and accordingly that the various versions of the Code have not been contravened. Again, although there is some variation in the precise statutory wording of the defence in the several versions of the Code under which these complaints have been brought, it is the position of the respondents that there is no material difference in the essentials of the statutory defence as far as the present complaints are concerned. The various complaints, and the provisions of the versions of the Code under which they are brought, together with the statutory statements of the "bona fide occupational qualification" (bfoq) defence, will be described in the next section of this decision.

3The complaints are brought, in some instances at least, against both the complainant's employer and the union representing him in matters of collective bargaining, inasmuch as the respondent unions have been viewed as essentially sympathetic to the reduction of the mandatory retirement age from 65 to 60. Indeed, there was some evidence led to suggest that the rather widespread reduction of the retirement age for firefighters that has been implemented in the majority of fire departments across the province has resulted from pressure brought by the union movement generally and by particular local unions to effect this change. It has been alleged in the present proceedings that this change has been advocated by the unions on the basis of a concern to reduce the risk to public safety and to fellow workers that allegedly results from the continued employment of individuals who are no longer capable of effectively discharging their responsibilities as firefighters. From the complainants' point of view, then, they see their unions as at least complicitous in a policy which they argue to be based on a policy of age discrimination which contravenes the Ontario Human Rights Code.

4The legality of mandatory retirement at age 60 for firefighters has been the subject of previous proceedings initiated by the Commission. One of these previous proceedings ultimately culminated in an appeal to the Supreme Court of Canada. In its decision in 1982 in the case of Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R., 132 D.L.R. (3d) 14, 1982 CanLII 15 (SCC), 3 C.H.R.R. D/781, the Supreme Court offered guidance with respect to the burden of proof imposed on complainants in a case of this kind and, further, with respect to the factual elements that must be established by a respondent who wishes to rely upon the bfoq defence. It perhaps should be noted that the anticipated importance of this decision of the Supreme Court for proceedings of this kind apparently led the Commission to postpone its processing of complaints of this kind and this has led to considerable delay in handling some of the complaints that form the subject matter of the present proceedings.

5In the Borough of Etobicoke case, the Supreme Court of Canada upheld a decision of Professor Bruce Dunlop sitting as a board of inquiry under the Ontario Human Rights Code, rejecting an attempt by the Borough to raise the bfoq defence. It was Professor Dunlop's view that the evidence concerning this issue led by the Borough was largely "impressionistic" and that although the evidence appeared to establish sound reasons for permitting firefighters to retire at age 60, he felt that a basis for mandatory retirement could not be established in the absence of some "scientific or statistical data to prove that beyond the age of 60 firefighters become less effective and less safe." Mr. Justice McIntyre, writing on behalf of a unanimous Supreme Court, adopted a similar view and offered the following guidance for boards of inquiry called upon to deal with issues of this kind at pp. 22–23 [of D.L.R., D/784 of C.H.R.R.]:

It would be unwise to attempt to lay down any fixed rule covering the nature and sufficiency of the evidence required to justify a mandatory retirement below the age of sixty-five under the provisions of s.4(6) of the Code. In the final analysis, the board of inquiry, subject always to the rights of appeal under s.14d of the Code, must be the judge of such matters. In dealing with the question of a mandatory retirement age it would seem that evidence as to the duties to be performed and the relationship between the aging process and the safe, efficient performance of those duties would be imperative. Many factors would be involved and it would seem to be essential that the evidence should cover the detailed nature of the duties to be performed, the conditions existing in the workplace, and the effect of such conditions upon employees, particularly upon those at or near the retirement age sought to be supported. The aging process is one which has involved the attention of the medical profession and it has been the subject of substantial and continued research. Where a limitation upon continued employment must depend for its validity on proof of a danger to public safety by the continuation of employment of people over a certain age, it would appear to be necessary in order to discharge the burden of proof resting upon the employer to produce evidence on this subject.

Mr. Justice McIntyre went on to express the view that scientific evidence was not in his view an absolute requirement for the successful establishment of the defence. Clear preference for such evidence was signalled, however, in the following passage at p. 23 [of D.L.R., D/784 of C.H.R.R.]:

I am far from saying that in all cases some "scientific evidence" will be necessary. It seems to me, however, that in cases such as this statistical and medical evidence based upon observation and research on the question of aging, if not in all cases absolutely necessary will certainly be more persuasive than the testimony of persons, albeit with great experience in fire-fighting, to the effect that fire-fighting is a "young man's game." My review of the evidence leads me to agree with the board of inquiry. While the evidence given and the views expressed were, I am sure, honestly advanced, they were, in my view, properly described as "impressionistic" and were of insufficient weight.

In this decision, then, the Supreme Court has indicated that employers who wish to rely on a bfoq defence will be well advised to ground it on a basis of statistical and medical evidence related to the effect of aging on the capacity of employees to discharge the responsibilities of the occupation in question.

6In the present proceedings, the respondents have attempted to meet this requirement. Considerable evidence was led by the respondents with respect to the particular responsibilities of the individual complainants, the conditions under which these tasks are performed and, as well, considerable evidence with respect to the effect of aging on physical fitness, vulnerability to coronary heart disease, and on a broad range of physical and mental capacities said to be related to the successful performance of firefighting tasks. As well, evidence was led with respect to the circumstances in which mandatory retirement schemes were implemented in the various municipalities and with respect to the particular circumstances of the retirement of each of the complainants. Although much evidence was led on each of these issues by both the Commission and the respondents (with the result that these proceedings were unusually lengthy), it is nonetheless the case that there was very little disagreement on the central, factual issues. The general substance of the evidence on these questions will be described in subsequent sections of this decision.

7The parties are in disagreement, however, with respect to the inferences to be drawn from these essentially common facts and on the proper analysis of them under the applicable provisions of the Ontario Human Rights Code. These points of dispute will also, of course, be considered in subsequent sections of this decision.

8One final preliminary point should be mentioned. It was the Commission's view that certain complaints brought by police officers in various municipalities should be joined in the current proceedings, the Minister of Labour having appointed the present Chairman to sit as a board of inquiry under the Code with respect to these complaints as well. In supporting a motion to this effect, counsel for the Commission relied on section 31(3) of the Human Rights Code, 1981, S.O. 1981, c. 53, which reads as follows:

31.(3) Where two or more complaints,

(a) bring into question a practice of infringement engaged in by the same person; or

(b) have questions of law or fact in common,

the Commission may combine the complaints and deal with them in the same proceeding.

It was Commission counsel's view that the complaints concerning firefighters and police officers shared certain questions of law and fact, and accordingly that it was appropriate to join these two sets of complaints in one proceeding. This position was opposed by counsel for all respondents on the basis that there was a great deal of the evidence concerning the two different sets of complaints that would not be common and further, on the basis that section 31 appears to confer certain powers on the Commission but no powers whatsoever on boards of inquiry to combine complaints in a particular proceeding. That is, it was submitted that while the Commission has the capacity to deal with a number of complaints simultaneously, boards of inquiry do not thereby acquire a power to order joinder of complaints, especially complaints from different complainants and respondents. In the event, I found it unnecessary to rule on the question of interpretation of the Code thereby raised inasmuch as it was my view that there were not sufficient issues of fact and law in common between the two sets of complaints to render a joinder over the wishes of the respondents appropriate in all the circumstances, even if a capacity to effect such joinder were conferred by section 31(3) of the Code. Inasmuch as all counsel involved in the proceedings concerning the complaints relating to the firefighters were ready to proceed immediately, it was determined that the complaints concerning the police officers should be adjourned sine die, it being left to counsel involved in the latter set of proceedings to establish a mutually satisfactory date for reconvening the hearings concerning those complaints.

II. The Complaints and the Position of the Respondents in Brief

9The bare essentials of the various complaints brought against the respondent municipalities and the respondent unions may be briefly summarized in the following manner:

A. ST. CATHARINES

(i) Complaints of Mr. George Hope

10Mr. Hope brought two complaints, one against his employer, The Corporation of the City of St. Catharines, and its Director of Personnel, Mr. F. A. Barley, and the second against his union, The St. Catharines Professional Firefighters' Association, Local 485 and its President at the material point in time, Mr. Glenn Jones.

11As far as the complaint against the city is concerned, Mr. Hope simply recounted the facts of his compulsory retirement at age 60 effective February 29, 1976. Mr. Hope alleges that he protested his retirement and advised the city that he was still capable of discharging his responsibilities. Mr. Hope had risen through the ranks, since joining the department as a firefighter on October 16, 1938. At the time of his retirement, he held the rank of Platoon Chief.

12Mr. Hope alleges that his retirement constitutes a breach by the employer of the following provisions of the Human Rights Code then in force:

4.(1) No person shall,

(b) Dismiss or refuse to employ or to continue to employ any person;

(e) Establish or maintain any employment classification or category that by its description or operation excludes any person from employment or continued employment;

(g) Discriminate against any employee with regard to any term or condition of employment,

because of . . . age, . . . of such person or employee.

"Age" is defined in section 26(a) of this version of the Code as "any age of forty years or more and less than sixty-five years." Mandatory retirement at age 65, then, would be perfectly acceptable under the Code.

13As far as the union is concerned, two different acts of discrimination are alleged. First, when Mr. Hope was advised that he was due to retire on February 29, 1976, he wrote a letter to Mr. Glenn Jones, the president of the respondent association, advising him that he believed it was discriminatory for the city to force him to retire before the age of 65 and he requested the union's support in grieving this action of the employer. The union refused to undertake such a grievance and Mr. Jones so notified Mr. Hope on March 12, 1976.

14It is alleged that this refusal to grieve Mr. Hope's retirement is a discriminatory act contrary to the following provision of the Code then in force:

4a(1) No trade union shall exclude from membership or expel or suspend any person or member or discriminate against any person or member because of . . . age . . .

The gravamen of this complaint, then, is that the union adopted a policy of refusing to process a grievance relating to Mr. Hope's retirement because of his age.

15The second complaint against the union was not set forth in the original complaint (Exhibit 4) but was, in effect, an amendment to or enlargement of the original complaint permitted by this Board of Inquiry. Counsel for the Commission alleged as the basis for a second complaint the fact that the union had negotiated a discriminatory condition in the applicable collective agreement and this constituted discrimination against "any person or member" because of age. In the present instance, the evidence suggests that the arrangements for mandatory retirement were put in place in 1946 at a time when the provisions of the Code relied upon were not yet enacted. The Commission's theory of the complaint, however, is that the annual failure to seek to remove a discriminatory arrangement in the collective agreement would constitute a further act of discrimination and would render the union vulnerable to a complaint under section 4a of the Code. There was no evidence relating to the negotiation of the collective agreement of 1975 between the employer and the union which was in force at the time of Mr. Hope's retirement. Accordingly, the theory put forward by the Commission is simply that the mere existence of a collective agreement containing or referring to a mandatory retirement scheme is evidence of a failure to negotiate removal of the scheme from the agreement and that this itself constitutes a breach of the Code.

(ii) The Complaints of Mr. Jack Karr

16Mr. Karr's complaint against the Corporation of the City of St. Catharines is identical in material respects to that of Mr. Hope. Mr. Karr joined the Grantham Township Fire Department on November 8, 1958 and became, after the amalgamation of Grantham Township with the City of St. Catharines, a member of the St. Catharines Fire Department on November 8, 1958. During his entire career with the department he was a firefighter and was, at the time of his mandatory retirement on May 31, 1980 a First Class Firefighter. It was alleged in his complaint that his mandatory retirement constituted a breach of the same provisions of the Code relied upon by Mr. Hope.

17Mr. Karr's original complaint (Exhibit 2) made no reference to the St. Catharines Professional Firefighters' Association. Inspired by the progress of Mr. Hope's complaint, counsel representing Mr. Karr sought to enlarge his complaint to embrace the respondent association on the theory that the association's failure to seek the removal of compulsory retirement from the collective agreement in force at the time of Mr. Karr's retirement constituted a breach of the Code. The Board acceded to this request.

(iii) Complaint of Mr. Benjamin Whitney

18Mr. Whitney brought a complaint against the Corporation of the City of St. Catharines in similar form to that of Mr. Hope and Mr. Karr. In Mr. Whitney's case, he was retired by the city on September 21, 1979.

19Mr. Whitney occupied the most senior position of the three St. Catharines' complainants. In June of 1958, after some ten or eleven years of service as a career and volunteer firefighter, he accepted the position of Chief at the Grantham Township Fire Department. After a merging of the two municipalities, Mr. Whitney joined the St. Catharines Fire Department as a Deputy Chief. Mr. Whitney's complaint alleges that his mandatory retirement is a contravention of the provisions relied upon by Mr. Hope and Mr. Karr.

B. WATERLOO

20A complaint was brought against the City of Waterloo by Mr. Karl Boatman. Mr. Boatman had joined the Waterloo Fire Department on January 1, 1952. In 1959 he was promoted to the rank of Lieutenant and in 1965 to the rank of Captain, a position which he held until forced to retire on April 10, 1981, when he attained the age of 60. In or about 1974, the Waterloo Firefighters' Association had negotiated a reduction in the normal retirement date of all members of the association applied by the city to age 60. This arrangement was reflected in the 1981 collective agreement (Exhibit 19) in force at the time of Mr. Boatman's retirement. The complaint characterizes this conduct as age discrimination in contravention of sections 4(1)(b) and 4(1)(g) of the Code.

C. WINDSOR

21Mr. Peter Callen brought two complaints, one against the Corporation of the City of Windsor and certain of its servants and agents and a second against the International Association of Firefighters, Local 455 and its president at the time of Mr. Callen's retirement, Mr. Earl Turpin-Carroll.

22In or about 1970, the City of Windsor and Local 455 had negotiated a collective agreement providing for a reduction in the normal retirement age from 65 to 60 for members of the association employed by the city as firefighters. Mr. Callen's involvement in firefighting began with the Sandwich West Fire Department in 1959. During his career in Sandwich West, Mr. Callen was promoted to Lieutenant in 1963 and to Captain in 1964. Upon annexation of Sandwich West Township to the City of Windsor January 1, 1966, Mr. Callen became a member of the Windsor Fire Department. Mr. Callen was not allowed to retain the rank of Captain. Sometime in 1977, however, he was promoted to the rank of Lieutenant. In 1979, he completed the examinations and was qualified for the rank of Captain and, although not promoted to this rank, he has served on and off in the rank of Captain from that time until his retirement.

23Prior to his retirement date of July 31, 1982, Mr. Callen protested his prospective retirement and made representations to this general effect to the Corporation of the City of Windsor. A decision was taken by the city to abide by the terms of the collective agreement with respect to Mr. Callen and he was eventually notified in writing by the city solicitor that he would be retired as of July 31, 1982.

24Mr. Callen alleges that his retirement constitutes a breach of the Human Rights Code, 1981, which provides as follows:

4.(1) Every person has a right to equal treatment with respect to employment without discrimination because of . . . age . . .

It would appear that the 1981 version of the Code, by adopting more general language, embraces the various particular acts of discrimination set out in the earlier provisions relied on by the other complainants in this case. In this version, the Code defines "age" for these purposes in section 9(a) as "an age that is eighteen years or more and less than sixty-five years."

25The principal focus of Mr. Callen's complaint against the respondent union relates to what is alleged to be harassment by the union and its officials relating to his protest of his forced retirement. In anticipation of his retirement, Mr. Callen retained a lawyer who wrote on his behalf to Mr. A. P. Angus, Personnel Director for the city, indicating that Mr. Callen did not wish to retire at age 60 and noting that Mr. Callen viewed his retirement as a breach of the Ontario Human Rights Code. Copies of this letter were sent by his lawyer to a number of individuals, including Mr. Earl Turpin-Carroll. Photocopies of this letter were posted by the union in all City of Windsor fire halls. On June 23, 1982, Mr. Callen's lawyer Mr. Juba wrote to Mr. Turpin-Carroll and advised him of the possible embarrassment that the posting of the letter would cause to Mr. Callen and advised him that it was his position that this conduct amounted to a reprisal against Mr. Callen for his attempt to exercise his rights under the Human Rights Code and was therefore contrary to section 7 of the Code. Section 7 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act to institute and participate in proceedings under this Act and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.

On July 12, 1982, Mr. Turpin-Carroll wrote to Mr. Juba advising him that the membership of the union had instructed him to post the letter and indicating that there was, in his view, no intention to intimidate or coerce Mr. Callen in any way because of his actions.

26Secondly, it was also Mr. Callen's position that his complaint should be enlarged to embrace a claim against the union for its negotiation of the compulsory retirement scheme in 1978 and for failing to negotiate the removal of this arrangement in the 1981 agreement which was in force at the time of his retirement.

D. ENLARGEMENT OF THE COMPLAINTS

27As indicated above, counsel for the Commission sought to enlarge the theory of liability alleged against the respondent unions by Mr. Hope and Mr. Callen to include an allegation that the failure of the unions to negotiate removal of mandatory retirement in the pertinent collective agreements itself constituted a breach of the Code. In this, the Commission was supported by counsel representing Mr. Hope and Mr. Karr. With respect to Mr. Karr, a submission was made to the effect that he should be permitted to bring a fresh complaint against his union on the basis of this theory of liability.

28This issue was the subject of considerable analysis by counsel representing the parties to this proceeding. This discussion and the Board's ruling in favour of the complainants is to be found in the transcript of these proceedings in Volume III at pages 102–143 and 153–181. The ruling itself is set out at pages 179–181. It is unnecessary to repeat that discussion in this decision but, inasmuch as the parties have attached such importance to the point, it may be useful to briefly indicate the nature of the reasons underlying the ruling in favour of the complainants.

29The Board indicated that the Ontario Human Rights Code appears to envisage that boards established under the Code should have a discretion to enlarge the scope of their inquiries beyond the precise terms of the complaint with respect to which the board has been appointed. Support for this view may be drawn from provisions of the pre-1981 versions of the Code conferring on the board a discretion to add additional parties to a proceeding upon such notice as the board deems appropriate (section 14b(1)(e)) and which further stipulates that the board, after hearing a complaint "shall decide whether or not any party has contravened this Act" (section 14c). Similar provisions are found in sections 38(3) and 38(1) of the 1981 Code. The cumulative effect of these provisions suggests firstly that a board could conceivably add as a party an individual not named in the complaint and secondly, is entitled to inquire into any contravention of the Code revealed in the evidence whether or not the contravention is set forth in the original complaint. With respect to the latter point, this interpretation draws strength not only from the "any matter" language of section 14(c) but from the obvious point that it would be an odd reading of the Code that would permit boards to add new parties but not to inquire into new matters concerning existing parties.

30In effect, then, the original complaint, although it establishes, broadly speaking, the terms of reference of the inquiry that the board is appointed by the Minister to undertake, does not have the effect of limiting the inquiry to the very precise allegations made in the complaint or to the suggested legal analysis of them contained in the complaint. It is not surprising that the Code should adopt such a position. In the first place, it should be remembered that the individual drafter of the complaint will often, perhaps usually, be someone without legal expertise who may or may not appreciate the proper legal analysis of his or her situation and all of the material facts. Secondly, it would be remarkably inconvenient for all concerned, including respondents, if too narrow a view of the focus of a particular inquiry were to result in a dismissal of a particular complaint and the establishment of a further board of inquiry by the Minister to inquire into other allegations. Common sense thus argues in favour of a scheme in which a board of inquiry has some latitude in defining and redefining the scope of its inquiry.

31The discretion conferred by the Code on boards to enlarge the scope of their inquiry is not, of course, untrammelled. Most obviously, it is limited by the provisions of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, and by such common law doctrines of natural justice and the duty to act fairly as may be applicable to a tribunal of this kind. In exercising the discretion, then, a board must be sensitive to the possible prejudice to a party not named in the original complaint who is added to the proceedings and to a named party who finds that the terms of reference of the inquiry have expanded beyond those set forth in the original complaint. No doubt the prejudice may often be removed through adequate notice. There may well be cases, however, where undue prejudice cannot be prevented through this or any other device and in such cases, presumably, boards of inquiry will not enlarge upon their inquiries in the manner requested. The point remains, however, that boards do possess the discretion to enlarge upon their inquiries in the manner suggested above. Similar interpretations of the Code are to be found in Cooper v. Belmont Property Management et al. (July 27, 1973), (Ratushny) [unreported]; Cousens v. The Canadian Nurses' Assn. (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365 (Ratushny); and Tabar and Lee v. Scott and West End Construction Ltd. (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 (Cumming). I do not view the decision of a tribunal established under the Canadian Human Rights Act in Energy and Chemical Workers, Local 916 v. Atomic Energy of Canada Ltd. (1984), 1984 CanLII 5014 (CHRT), 5 C.H.R.R. D/2066, in which a motion to amend a complaint was denied, as persuasive authority to the contrary. Leaving aside the question of whether the federal Act has been correctly interpreted by the tribunal in that case, it should be noted that the language of the federal Act can be more easily read as confining the inquiry to the specific complaint than can the language of the provisions of the Ontario Code.

32In the present case, it was the board's view that the relationship of the enlarged theory of liability to the original complaints of Mr. Hope and Mr. Callen and the fact that Mr. Karr's complaint against the respondent union followed so closely the footsteps of Mr. Hope, suggested that no substantial prejudice was imposed upon the respondent union by permitting the enlargement of the inquiry requested by counsel for the Commission and the complainants Hope, Callen and Karr.

E. THE POSITION OF THE RESPONDENTS

33The parties are essentially in agreement with respect to the facts relating to the retirement of each of the complainants. That is to say, it is common ground that each of the complainants was subject to a policy of mandatory retirement at age 60. Moreover, it is common ground that forced retirement at age 60 would constitute discrimination on the basis of age unless the bfoq defence can be established by the respondents. The term "age" is defined in section 9 of the pre-1981 Codes as "any age of forty years or more and less than sixty-five years" and in section 9 of the 1981 Code for these purposes as "an age that is eighteen years or more and less than sixty-five years."

34While it would be acceptable under the Ontario Code, then, to retire employees at age 65, retirement at age 60 is subject to scrutiny under the anti-discrimination provisions of the Code.

35Mandatory retirement at age 60 would be offensive to these provisions unless it can be defended under the bfoq defence. The pre-1981 versions of the Code set forth this defence in the following terms:

4.(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

The 1981 version of the Code contains an equivalent provision in the following terms:

23. The right under section 4 to equal treatment with respect to employment is not infringed where

(b) the discrimination in employment is for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment.

There are some differences between the wording of these two sections. Nonetheless, it appears to be accepted by counsel for all parties and it is the view of this Board that there is no difference between the two versions of the bfoq defence that is material in the present case. The addition of the term "reasonable" in section 23 may serve to emphasize an intention of the legislature that the bfoq defence contains an objective element. It was not the position of counsel for the respondents, however, that the bfoq defence set forth in the pre-1981 versions of the Code contained no such element. Any doubt as to whether the pre-1981 Code bfoq test contained an objective element has been resolved by the decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Borough of Etobicoke, supra. Similarly, the deletion of the phrase "and requirement" and the replacement of the phrase "for the position or employment" by the phrase "because of the nature of the employment" appears to represent differences in drafting style rather than matters of consequence.

36In these proceedings, then, the respondent employers have sought to establish that the ages of 60 is a reasonable and bona fide qualification for the various jobs held by the complainants in their respective fire departments.

37The respondent unions have also relied on the bfoq defence and, indeed, simply adopted the evidence and arguments put forward by the respondent employers on this issue as their own. The unions also argued, however, that the theory put forward by some of the complainants that the mere fact that the unions had failed to negotiate for the removal of references to mandatory retirement schemes in the applicable collective agreements constituted a contravention of the Code is unsound. As well, it has been submitted that Mr. Hope's union was under no duty to grieve his mandatory retirement. Further, it was submitted that the allegations of harassment put forward by Mr. Callen were not grounded in fact and were based on a misunderstanding of union practices and procedures.

38In short, although the respondent unions shared the employers' view that the age of 60 constituted a reasonable and bona fide job requirement, they were also of the view that whether or not the bfoq defence succeeded, the complaints against the unions should be dismissed on other grounds.

III. The Law Pertaining to the BFOQ Defence

39It is evident that one of the central issues in the case relates to the burden of proof imposed by law on the respondents in their attempts to successfully establish that the age of 60 is a reasonable and bona fide qualification for the jobs held by the complainants. Considerable argument was directed to this issue by counsel, who canvassed a broad range of Canadian and American precedents on this question. Before turning to examine the evidence led with respect to the job descriptions of the particular complainants, the nature of firefighting and various questions relating to the aging process, it will be useful to set out this Board's understanding of the elements of the bfoq defence.

40The most important source of guidance on the proper interpretation of the bfoq defence is the decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Borough of Etobicoke, supra. In that case, the Supreme Court clearly indicated that the bfoq provision of the Ontario Code, even in its pre-1981 version, contained both a subjective and an objective element. On behalf of the Court, McIntyre J. set forth the subjective element in the following terms at p. 19 [of D.L.R., D/783 of C.H.R.R.]:

To be a bona fide occupational qualification and requirement a limitation, such as 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 adequate performance of the work involved . . . not for ulterior or extraneous reasons . . .

The objective branch of the defence was described in this manner at p. 20 [of D.L.R., D/783 of C.H.R.R.]:

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 economic performance of the job without endangering the employee, his fellow employees and the general public.

Further, the Court indicated at some length in this decision the kind of evidence that would be considered material in determining whether or not a particular employer was able to establish the bfoq defence. In passages of the Court's judgment which are reproduced in the introductory pages of this decision, McIntyre J. indicated (at pp. 22–23 of D.L.R., D/784 of C.H.R.R.) that the judge should be provided with evidence concerning "the relationship between the aging process of the safe, efficient performance of those duties" including evidence which would "cover the detailed nature of the duties to be performed, the conditions existing in the workplace, and the effect of such conditions upon employees, particularly upon those at or near the retirement age sought to be supported." As well, it will be recalled, the Court stressed the desirability and persuasiveness of statistical and medical evidence based on observation and research on the question of aging rather than impressionistic evidence of the kind which had been led at the board of inquiry level in the Etobicoke case.

41Additionally, and importantly, the Court in Etobicoke, supra, offered some guidance as to the nature of the test to be met by an employer in a field involving public safety attempting to establish a mandatory retirement age of less than 65 that can be defended on the basis of bfoq. The nature of this test has been a matter of considerable controversy in the present case.

42As a preliminary point, it should be noted that the Supreme Court was clearly of the view that it was at least conceivable that such a defence could be established. This is indicated in the following passage at p. 20 [of D.L.R., D/783 of C.H.R.R.]:

Faced with the uncertainty of the aging process an employer has, it seems to me, two alternatives. He may establish a retirement age of 65 or over, in which case he would escape the charge of discrimination on the basis of age under the Code. On the other hand, he may, in certain types of employment, particularly in those affecting public safety such as that of airline pilots, train and bus drivers, police and firemen, consider that the risk of unpredictable individual human failure involved in continuing all employees to age 65 may be such that an arbitrary retirement age may be justified for application to all employees.

McIntyre J. went on to note that though it may be that in such a case some individuals would remain fit beyond the date of their retirement, the retirement age might be defended if the degree of risk to public safety attendant upon employee failure were sufficient to warrant a mandatory retirement scheme. These points are made in the following passage at pp. 20–21 [of D.L.R., D/784 of C.H.R.R.]:

In the case at bar it may be said that the employment falls into that category. While it is no doubt true that some below the age of 60 may become unfit for firefighting and many above that age may remain fit, recognition of this proposition affords no assistance in resolving the second question. In an occupation where, as in the case at bar, the employer seeks to justify the retirement in the interests of public safety, to decide whether a bona fide occupational qualification and requirement has been shown the board of inquiry and the Court must consider whether the evidence adduced justifies the conclusion that there is sufficient risk of employee failure in those over the mandatory retirement age to warrant the early retirement in the interests of safety of the employee, his fellow employees and the public at large.

This test has been described for convenience by counsel for the respondents as the "sufficient risk" test and is alleged by them to offer support for the view that where substantial risk to public safety is involved, the burden of proof imposed on the respondents in establishing a bfoq is less burdensome than it might be in a case where no public safety factor were present.

43Counsel for the complainants has argued against this view and in doing so, has relied to a considerable extent on American authority. More particularly, it has been urged that the proper test to apply is that set out in Usery v. Tamiami Trail Tours Inc., 531 F.2d (1976) (U.S.C.A., 5th Cir.) a decision of a federal appellate court, offering an interpretation of equivalent although not identical provisions of the U.S. Age Discrimination in Employment Act of 1976, 29 U.S.C.A. 621 et seq. ("A.D.E.A."). The issue in that case pertained to a minimum hiring age for bus drivers for service on inter-city bus routes. Parenthetically, it is of interest to note that one of the obvious purposes of age discrimination legislation is to render inoperative maximum hiring ages which cumulatively have the effect of decreasing employment opportunities for the middle-aged unemployed. Employers might have a variety of reasons for preferring to hire only younger employees. The effect of the Ontario provisions, and legislation elsewhere, is to strike down such hiring practices unless they can be upheld on the basis of a bfoq.

44In Tamiami, supra, the tour operator sought to defend the hiring practice on the basis that seniority rules in the workplace had the effect of requiring new employees to spend approximately ten years on so-called "extra board" service which meant that they would be essentially on 24-hour call and would frequently be required to go on short notice on early morning inter-city runs. It was the employer's view that such service was particularly demanding and better done by younger employees. The hiring practice was thus defended on the basis of public safety concern with respect to the performance of drivers over 40 during their first ten years of service.

45Maximum age hiring practices would appear to be particularly difficult to defend inasmuch as it will undoubtedly inevitably be the case that there will be many employees over the hiring age who are effectively rendering what is apparently reasonably safe service. Thus, there would be many drivers in the Tamiami work force over that age. The employer in Tamiami further argued, however, that older bus drivers can compensate for their decline in physical attributes as they age by choosing day shifts and shorter routes. Further, the employer argued that there were not available tests which could accurately identify those drivers not yet affected by the more crucial age-related, accident-causing impairments such as loss of stamina, etc.

46In the event, the District Court accepted this evidence and sustained the defendant's hiring practices and this decision was upheld in the Court of Appeal. In reaching this conclusion, the Court articulated a test for the successful establishment of the bfoq defence that it had itself developed in previous decision in Weeks v. Southern Bell Telephone, 408 F.2d 228 (1969) and which it repeated in the Tamiami opinion in the following terms at p. 236:

. . . Tamiami faces the second, double-facetted prong of the bfoq test set out in Weeks: whether it had reasonable cause, that is, a factual basis, for believing that all or substantially all persons over 40 would be unable to perform safely and efficiently the duties of the job involved, or whether it is impossible or impractical to deal with persons over 40 on an individualized basis.

Counsel for the complainants thus argues that the respondents in the present case must establish either that all or substantially all firefighters over the age of 60 are unable to perform effectively or that it is impossible or impractical to deal with such employees on an individualized basis, presumably because their deficiencies cannot be identified through testing of various kinds with sufficient accuracy. We shall refer to this as the "Tamiami test."

47The respondents argue that the Tamiami test does not represent the law of Canada and establishes too high a hurdle for employers in a case in which public safety is at issue. Support for this view is drawn from another American appellate decision, Hodgson v. Greyhound Lines Inc., 499 F.2d 859 (U.S.C.A., 7th Circ.) (1974). This was also a case of maximum age hiring practices dealing with inter-city bus drivers. In Hodgson, the employer sought to uphold an age 35 maximum on the basis of the "extra board" practices discussed in Tamiami. Although the employer failed in the trial court, the bfoq was upheld in the Court of Appeal. The "all or substantially all" test of the Weeks case was said to be irrelevant by the court in Hodgson on the basis that Weeks was not a case in which public safety was at issue. Weeks in fact was a sex discrimination case in which a railway attempted to defend a practice of hiring males only for the position of switchman. The Hodgson court summarized its views on the nature of the bfoq test in the following terms at p. 863:

Due to such compelling concerns for safety, it is not necessary that all or substantially all bus driver applicants over 40 could not perform safely. Rather, to the extent that the elimination of Greyhound's hiring policy may impede the attainment of its goal of safety, it must be said that such action undermines the essence of Greyhound's operations. Stated differently, Greyhound must demonstrate that it has a rational basis in fact to believe that elimination of its maximum hiring age will increase the likelihood of risk of harm to its passengers. Greyhound need only demonstrate, however, a minimal increase in risk of harm for it is enough to show that elimination of the hiring policy might jeopardise the life of one more person than might otherwise occur under the present hiring practice.

As might be expected, the respondents argue that this reasoning is precisely applicable to the facts in the present case. The respondents further argue, moreover, that the language of Hodgson is more consistent with the "sufficient risk" language of our Supreme Court's judgment in Etobicoke than is the "all or substantially all" test of Tamiami. Indeed, it must be noted that in Etobicoke, McIntyre J. referred (at p. 23 of D.L.R., D/784) to Hodgson as an authority "of particular interest" to the "question of sufficiency and the nature of evidence in such matters." Further, the respondents note that there is a difference in the wording of the American A.D.E.A. bfoq test which permits the defence to be raised only where the requirement is "reasonably necessary to the normal operation of the particular business." [Emphasis added]

48This matter is not one which, in my view, is settled by either the reference to Hodgson in Etobicoke or by the differences in wording between the American and Canadian legislation. As far as Etobicoke is concerned, although it is evident that the Hodgson case was referred to approvingly by the Court, it was not referred to with respect to the precise question of the appropriateness of the "all or substantially all" test. As far as the statutory language is concerned, although it is true that the American "reasonably necessary" could be read differently from the "reasonable . . . qualification" language of the Ontario Code, I am not convinced that it would be consistent with the Etobicoke decision to do so. McIntyre J., in describing the objective branch of the test, stated (at p. 20 of D.L.R., D/783 of C.H.R.R.) that the qualification must be "reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public." Accordingly, the competing merits of the Tamiami and the Hodgson tests require some assessment.

49It is of considerable interest that this issue has been authoritatively resolved in the American jurisprudence by the American decision of the U.S. Supreme Court in Western Airlines v. Criswell, 105 S.Ct. 2743 (1985). In Criswell, the Supreme Court reviewed a mandatory retirement policy of an airline which required both pilots and flight engineers to retire at age 60. A number of flight engineers retired at age 60 and a number of pilots who had been denied reassignment as flight engineers upon reaching age 60 challenged this policy under the A.D.E.A. The employer sought to sustain this policy on the basis of a bfoq defence arguing, in part, that in a case where public safety is at issue, it is sufficient for the employer to establish a "rational basis" for the policy in question. The Supreme Court disagreed with this approach and adopted the Tamiami standard as the appropriate basis for assessing a bfoq defence.

50It must be emphasized, however, that it was not the Supreme Court's view that the public safety element was irrelevant. Rather, it was the Court's view that the concern for public safety would be relevant in determining whether the employer had established reasonable qualifications for the job in question. In raising a bfoq defence, the employer will have to define its expectations as to the qualifications or performance capacities necessary to perform the job in question. The employer will then attempt to demonstrate that employees above a certain age will not have these qualifications or capacities. It was the Supreme Court's view in Criswell, supra, that the public safety factor is highly relevant in determining whether or not the stipulated qualifications are "reasonably necessary to the normal operation of the particular business." Once a court is satisfied that the qualifications are justifiable, the second branch of the inquiry is undertaken in order to determine whether or not the particular mandatory retirement age identifies, with sufficient accuracy, a group of people who no longer possess the qualifications in question. In turn, this could be established by showing either that "all or substantially all" employees at the stipulated age would no longer possess the qualifications or, alternatively, by demonstrating that it is "impossible or highly impractical" to deal with employees on an individualized basis in the sense that one can, in a practical way, test them for the presence of the qualifications at issue. This was, in fact, the approach taken in Tamiami. In Criswell, the Supreme Court summarized the substance of the Tamiami opinion in the following terms at pp. 2751–52:

First, the court recognized that some job qualifications may be so peripheral to the central mission of the employer's business that no age discrimination can be "reasonably necessary to the normal operation of the particular business." (29 U.S.C. 623(f)(1)). The bus company justified the age qualification for hiring its drivers on safety considerations, but the court concluded that this claim was to be evaluated under an objective standard:

[T]he job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business — here, the safe transportation of bus passengers from one point to another. The greater the safety factor, measured by the likelihood of harm and the probably severity of that harm in the case of an accident, the more stringent may be the job qualifications designed to insure safe driving. 531 F.2d, at 236.

This inquiry ”˜adjusts to the safety factor' by ensuring that the employer's restrictive job qualifications are "reasonably necessary" to further the overriding interest in public safety. In Tamiami, the court noted that no one had seriously challenged the bus company's safety justification for hiring drivers with a low risk of having accidents.

Second, the court recognized that the A.D.E.A. requires that age qualifications be something more than ”˜convenient' or ”˜reasonable'; they must be ”˜reasonably necessary . . . to the particular business,' and this is only so when the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry. This showing could be made in two ways. The employer could establish that it ”˜had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all [persons over the age qualifications] would be unable to perform safely and efficiently the duties of the job involved. In Tamiami, the employer did not seek to justify its hiring qualification under this standard.

Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is ”˜impossible or highly impractical' to deal with the older employees on an individualized basis. One method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant's membership in the class.' In Tamiami, the medical evidence on this point was conflicting, but the District Court had found that individual examinations could not determine which individuals over the age of 40 would be unable to operate the buses safely. The Court of Appeals found that this finding of fact was not ”˜clearly erroneous,' and affirmed the District Court's judgment for the bus company on the BFOQ defense. (footnotes omitted)

In Tamiami, it will be recalled, the bus company argued that a certain level of physical and psychological fitness was necessary in order to enable new employees to endure the rigours of "extra board" service. The view of the Tamiami court was that in determining whether or not this employer requirement was a reasonably necessary one, it was highly relevant to consider the public safety implications of employee failure. The U.S. Supreme Court, in Criswell, agreed with this view.

51Indeed, it should be pointed out that both courts stressed the importance of taking into account considerations of public safety when making this assessment and the desirability of giving employers some latitude on this issue in cases of this kind. The Supreme Court put this point in the following manner in Criswell, supra, at p. 2754:

When an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is ”˜reasonably necessary' to safe operation of the business. The uncertainty implicit in the concept of managing safety risks always makes it ”˜reasonably necessary' to err on the side of caution in a close case. The employer cannot be expected to establish the risk of an airline accident ”˜to a certainty, for certainty would require running the risk until a tragic accident would prove that the judgment was sound.' Usery v. Tamiami Trail Tours, Inc., 531 F.2d at 238. When the employer's argument has a credible basis in the record, it is difficult to believe that a jury of lay persons — many of whom no doubt have flown or could expect to fly on commercial air carriers — would not defer in a close case to the airline's judgment. (footnotes omitted)

This is not to say, of course, that generous assumptions are made in favour of employers in any case where public safety is involved. In the Criswell case itself, for example, the court upheld a finding that the employer had not discharged the burden of demonstrating that age 60 was a reasonable bfoq for flight engineers.

52Once the employer's qualifications are established as being appropriate in light of public safety concerns, the analysis then turns to the second issue, that is whether a mandatory retirement scheme is a defensible means of achieving the objective of ensuring that employees have this qualification. In Criswell, the Supreme Court adopted the view that the mandatory retirement age would be defensible if either "all or substantially all" employees no longer possessed the qualifications at the age in question or, alternatively, even if this were not the case, it would be "impossible or highly impractical" to identify the deficient employees through other means. The second branch of the test would be satisfied, presumably, by demonstrating that there was no feasible means of testing employees on an individual basis for the attributes in question.

53I find this to be an illuminating analysis of the factors that would lead one to conclude that a particular mandatory retirement age was or was not a bfoq. Assuming that the qualifications insisted upon by the employer were reasonable in the light of public safety concerns, the question surely is simply whether age alone is a satisfactory proxy for determining the absence of the attribute (as it would be if "all or substantially all" of the employees at this age lack the attribute in question) and, if not, whether there is some satisfactory means of identifying the deficient employees. If there is no such method, the employer is permitted to fall back on the no less unsatisfactory method of simply having a retirement age. Surely it would not be open to the employer to demonstrate that even though a substantial number of employees are capable of discharging their responsibilities beyond the retirement age and even though there is a satisfactory means of testing the capacities of these employees, the employer chooses not to do so because there is some element of public safety involved. It is this that is precluded by the Criswell analysis and it appears to me to be perfectly consistent with the analysis in Etobicoke, supra, that employers would not be able to defend such an approach under the Ontario Code. The preference of the Code is for individualized treatment, even in cases of occupations with a public safety dimension, where this is a practical alternative to an arbitrary mandatory retirement age.

54I draw some support for this view from the concurring opinion of MacGuigan J. in Air Canada v. Carson et al. (1985), 1985 CanLII 5499 (FCA), 18 D.L.R. (4th) 72, 6 C.H.R.R. D/2848 (Fed. C.A.) in which he reviews some additional cases adopting the views set forth in Criswell and, if I understand the thrust of the opinion, the suggestion is made that the American analysis is an acceptable elaboration or extension of the Etobicoke analysis and is consistent with the tests set out by McIntyre J. in that case. MacGuigan J. suggests (at p. 90 of D.L.R., D/2855 of C.H.R.R.) that the American test is "a more proximate stage" in the bfoq analysis mandated by Etobicoke. By this he appears to mean that the analytical model provided by the American material is a reasonable prelude to reaching the judgment called for in Etobicoke, [supra at 21 of D.L.R., D/784 of C.H.R.R.] as to "whether the evidence adduced justifies the conclusion that there is sufficient risk of employee failure in those over the mandatory retirement age to warrant the early retirement in the interests of the safety of the employee, his fellow employees and the public at large."

55Although Criswell, supra, does suggest that there is a clear bifurcation between the first step in the analysis, within which the public safety element becomes relevant, and the second step in which the particular age qualification is measured against the two prongs of the Tamiami test, it may well be that so strict a division is not desirable. Thus, it may well be that in determining whether or not it is "practical" to engage in individualized testing of employee capacities, the accuracy of the tests themselves may become an issue. Indeed, it may be that there are very few contexts within which absolutely accurate testing is possible. In determining whether a particular testing arrangement is satisfactory for the employer's purposes, it may well be appropriate to require a higher level of accuracy in testing where defective performance by an employee creates a substantial risk to public safety. Subject to this one possible gloss, however, I am persuaded that the analysis adopted by the Supreme Court in Criswell offers a useful analytical framework within which to apply the test set forth in the Etobicoke decision by the Supreme Court of Canada.

56In summary, then, the following guidelines for the interpretation of the bfoq provision in the Ontario Code can be drawn from the decision of the Supreme Court in Etobicoke:

1. The respondent must satisfy both the subjective and objective branches of the Etobicoke test, i.e., that the mandatory retirement is imposed honestly and in good faith and is 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 or the general public.) (p. 20, D/783)

2. Where, as in the present case, there is a public safety dimension to the occupation, the adjudicator must determine whether there is sufficient risk of employee failure in those over the mandatory retirement age to warrant the early retirement in the interests of safety of the employee, his fellow employees and the public at large. (p. 21, D/784)

3. In making the determination indicated in item 2, it is appropriate to first determine whether the qualification imposed by the employer is reasonably necessary in light of the public safety implications of the occupation in question and secondly, to determine whether all or substantially all of the employees at the mandatory retirement age would not be able to meet the qualification in question or, alternatively, whether the qualification is such that it is impossible or impractical to make individualized assessments of employees.

4. The adjudicator must consider evidence relating to the duties to be performed by the employee, the conditions existing in the workplace and the effect of such conditions upon employees at or near the retirement age sought to be supported. As well, evidence concerning the relationship between the aging process and the safe, efficient performance of the duties would be required and in this regard, "statistical and medical evidence based upon observation and research on the question of aging, if not in all cases absolutely necessary, would certainly be more persuasive" than anecdotal evidence of individuals familiar with the workplace environment in question. (at p. 23, D/784)

Finally, it may be noted that the underlying premise of the reasoning in Etobicoke is that it is at least conceivable that a bfoq defence can be established with respect to a mandatory retirement age and accordingly, the Code ought not to be interpreted in such a way as to preclude such a finding. Thus, it is not surprising that in a number of cases age requirements of various kinds have been upheld in the Canadian case law. See, for example, Manitoba Human Rights Commission et al. and City of Winnipeg et al. (1983), 1983 CanLII 2895 (MB CA), 144 D.L.R. (3d) 353, 1983 CanLII 4697 (MB CA), 4 C.H.R.R. D/1255, sub nom. Finlayson v. City of Winnipeg (Man. C.A.); Moose Jaw et al. v. Saskatchewan Human Rights Commission et al., 1984 CanLII 2643 (SK QB), [1984] 4 W.W.R. 468, 1984 CanLII 5046 (SK QB), 5 C.H.R.R. D/2205, sub nom. Moose Jaw v. Day (Sask. Q.B.); Saskatchewan Human Rights Commission v. Saskatoon (1985), 1985 CanLII 2343 (SK QB), 37 Sask. R. 1, 6 C.H.R.R. D/2630 (Sask. Q.B.). Although these are cases that have upheld the mandatory retirement ages, it is not suggested, of course, that these decisions are of any assistance on the particular facts of the present case. There are also cases, such as Etobicoke, supra, and City of Winnipeg v. Ogelski (1985), 1985 CanLII 3044 (MB QB), 6 C.H.R.R. D/3079 (Man. Q.B.) in which such restrictions have not been upheld and indeed, the general burden of the analysis in Etobicoke is to the general effect that each case must turn on its particular facts and the evidence relating to the various elements of the bfoq. The point for present purposes, however, is simply that it would be inconsistent with Etobicoke to adopt a reading of the Code which made it virtually impossible for employers to establish a bfoq defence in a case involving an occupation with a public safety element.

57Against this background, then, we turn to a consideration of the particular facts underlying the complaints forming the subject matter of this proceeding.

IV. The Duties to be Performed and the Conditions of the Workplace

58Considerable evidence was led by both the complainants and the respondents with respect to the actual job descriptions of the individual complainants and with respect to the general nature of firefighting. The cumulative effect of this evidence was to leave one very impressed with the burdensome nature of this occupation and very appreciative of the efforts of those who devote their careers to this important line of work.

59The hierarchy of ranks in each of the three respondent fire departments is essentially the same. Moving from the lower rank to the highest rank, members of the department will hold ranks form firefighter (which may contain subdivisions from probationer up to first-class firefighter), lieutenant (which also may be subdivided into second and first class), captain, platoon chief, deputy chief and chief. The complainants in the present case were, at their time of retirement, a firefighter (Karr), a lieutenant (Callen), a captain (Boatman), a platoon chief (Hope) and a deputy chief (Whitney). All ranks below the rank of chief were thus represented in this proceeding and accordingly, the cumulative effect of the evidence of the complainants, the evidence of the respondents' witnesses, together with documentation in the form of organizational charts, job descriptions for all ranks, pictures, brochures and the like, was to give a very full and complete account of the organization of the work of a fire department in each of the three municipalities.

60It is unnecessary to produce an account of this material inasmuch as the single and most important fact pertinent to the employers' defence of the mandatory retirement age is that employees in each of these ranks are required to engage in what has been referred to in these proceedings as "hands on" firefighting. That is to say, members of the respondent fire departments from the rank of firefighter up to the rank of deputy chief are all required to engage in the physical task of fighting fires. To be sure, those who hold the rank of firefighter spend more of their time engaged in this activity than deputy chiefs. It is nonetheless true that deputy chiefs themselves are required, from time to time, to engage in the very demanding physical tasks which will be very briefly described below.

61It is very important to note that it is no part of the complainants' case that the work of these fire departments could be reorganized in such a way as to create jobs which would not involve "hands on" firefighting. Thus, it was not suggested that individuals of more senior ranks such as platoon chief or deputy chief could be confined to a purely supervisory activity and not required to become actively involved in the physical aspects of firefighting itself. The complainants and the Commission appear to accept that the current organization of the workload within the respondent departments is an acceptable basis for testing the complaint made with respect to mandatory retirement.

62Moreover, the evidence clearly establishes that at the rank of deputy chief, for example, there is no question but that individuals holding this rank do in fact engage in "hands on" firefighting from time to time. Quite apart from the evidence led indicating that this was part of the employers' expectation of individuals holding this position, Chief Stewart of the City of Windsor Fire Department, for example, testified with respect to his experiences of firefighting as a deputy chief (Transcript, Vol. IV, pp. 68 et seq.). Chief Stewart recounted a number of incidents involving very demanding, direct, personal involvement in the physical aspects of firefighting, occasionally for long periods of time and occasionally with resulting injuries. Similar, if less dramatic, evidence was offered by Deputy Chief Whitney (transcript, Vol. III, pp. 89 et seq.).

63Moreover, although it is true that more senior officers will less frequently be involved in handling firefighting than firefighters, expert evidence led in these proceedings suggested that this did not in any way render the physical demands placed on senior officials less burdensome or risky. Indeed, the fact that people who were normally more sedentary than those at junior ranks would unpredictably be called upon for strenuous physical exertion suggested both that they were less likely to be able to discharge the task adequately and further, that in engaging in such activity they were incurring greater risk to their own health and safety.

64In short, then, I am persuaded that each of the complainants is required, as a routine matter of duty, to engage in firefighting. As is obvious, the blend of this particular task with more sedentary activities such as basic maintenance work at the fire station or supervisory work varies considerably from one rank to the next.

65The basic elements of "hands on" firefighting are sufficiently obvious as not to require description here in detail, but numerous witnesses described the basic chronology of a firefighting episode and the kinds of tasks that firefighters may be called upon to perform. Witnesses stressed the physically demanding nature of the work. Much of the equipment to be handled is very heavy. The hauling and moving of charged hoses, for example, is very heavy work. Firefighters wear a considerable amount of equipment, including protective gear and so-called Scott airpacks, the total weight of the gear worn in the course of firefighting being estimated at something in the order of 65 lbs. As well, they are likely to be carrying equipment such as axes or hoses. Firefighters so equipped are required to engage in rather athletic activity, climbing ladders, climbing stairwells, sometimes in very tall buildings, breaking through windows, doors and walls, managing hoses, climbing up on roofs, and so on. Importantly, rescue work at the fire scene may be particularly difficult, involving on occasion very considerable personal danger and the burdensome task of removing unconscious persons from a burning building.

66It is evident that the work, apart from being physically demanding, is very stressful. A number of witnesses identified rescue situations as being particularly stressful and, of course, especially demanding from a physical point of view inasmuch as these situations call for the supreme effort.

67Again, members of all ranks may be called upon to enter a burning building and engage in firefighting. The environment is not only psychologically stressful but of such a nature as to add to the physical demands of the job. The presence of smoke and tremendous heat can not only complicate the task of finding one's way around in a building (and, indeed, escaping from it if need be) but also creates an environment in which the physical strain of an already-demanding set of tasks is considerably increased. Further, many witnesses described the phenomenon of leaving a burning building, wet and heavily perspiring, only to encounter the rigours of winter weather in each of the respondent municipalities. There is thus the added physical stress of moving from extreme heat to extreme cold and back again as the work progresses.

68The job is also obviously one which requires considerable common sense and good judgment. Witnesses of all ranks describe the process of approaching the scene of the fire and "sizing up" the situation. "Sizing up" refers to the process of assessing the situation and determining what steps should be taken to fight the fire or effect necessary rescues. Good judgment is required in many specific actions undertaken by individuals of all ranks in carrying out their firefighting tasks.

69Evidence was also led with respect to the general nature of the municipalities in each case. All are sufficiently large municipalities to contain a broad range of heavy and light industrial and commercial environments, large institutional settings such as hospitals and schools, a variety of transportation facilities and large residential areas. Each municipality has some highrise office and apartment towers which, of course, complicate the task of firefighting.

70Considerable emphasis was placed by many witnesses, including some of the expert witnesses, on the fact that firefighting, at least in the initial stages of fighting a particular fire, is an externally paced activity in the sense that one must typically work at an optimal level of effectiveness for at least twenty minutes or so, before any break in activity or relaxation can be obtained. Depending on the circumstances, of course, it may well be a longer period of time before an individual firefighter may be able to take a rest but, as will be explained in subsequent sections of this decision, the requirement that one must be able to sustain a high level of activity for at least an uninterrupted period of twenty minutes or so was thought by many witnesses to be a basic requirement of the job.

71Some evidence was also led with respect to other kinds of emergencies in which firefighters become involved. Although some of these stories were indeed quite harrowing, they did not appear to involve tasks that were generally more burdensome or more risky than firefighting itself.

72In summary, and at the risk of belabouring the obvious, firefighting is an extremely demanding job from a physical point of view, conducted in an atmosphere of emergency in which there is considerable psychological stress and in working conditions which are both dangerous and such as to intensify the physical strain endured by each firefighter. The job requires the individual to be able to apply sound and swift judgment in these difficult circumstances. Although it is true that the actual task of firefighting occupies far from all of the time of individuals of each rank, this appears to make the job a more demanding one inasmuch as individual firefighters will be called, on short notice, perhaps in the middle of the night, to shift from more or less sedentary activity to a task which is physically very burdensome and psychologically very stressful.

73As might be expected, it is the position of the respondents that individuals who are not sufficiently fit to carry out these tasks are a danger to themselves, to their fellow employees and to the public at large. Indeed, the proposition that employee failure carries grave implications for the safety of fellow workers and for the general public was not seriously challenged in these proceedings.

74Against the background of these facts, I am satisfied that the requirement of the respondent employers that firefighters must possess a level of physical fitness and mental acuity to engage effectively in "hands on" firefighting of the kind described above is a reasonably necessary requirement in the light of the role performed by fire departments, the manner in which their work is organized and the risk to public safety and the safety of fellow employees resulting from defective performance.

V. The Subjective Element of the Etobicoke Test

75It will be recalled that in Etobicoke, supra, MacIntyre J. stated that an employer who wishes to establish mandatory retirement at a fixed age as a bfoq must establish that the limitation is imposed honestly and in good faith in the sense that it is imposed in the interests of adequate performance of the work involved and not for ulterior and discriminatory reasons. This branch of the Etobicoke test is easily met on the facts of the present complaints.

76It was apparent from the evidence of many witnesses that there is a widespread belief in the firefighting community that the older firefighter is not only incapable of doing the job properly but also is at greater risk of injury and of medical problems such as heart failure. Some witnesses also indicated that, quite apart from problems encountered at work, it was believed by many that firefighters were less likely than others to enjoy a lengthy retirement as a result of the physically strenuous nature of their work. It was the evidence of union officials that provincial and, indeed, the international organization of firefighters had recommended the reduction of the retirement age for firefighters generally and, more particularly, to age 60 from age 65 in Ontario through the 1960s and 1970s. The evidence also indicates that this view is shared by the Chiefs who testified in these proceedings and constitutes the basis on which a number of Ontario municipalities have reduced the mandatory age for firefighters from 65 to 60.

77Quite apart from the general evidence with respect to union and management attitudes concerning the question of mandatory retirement, however, there was specific evidence from the respective fire chiefs and union officers to the effect that mandatory retirement was supported by them on this basis at the time of the retirements which form the subject matter of the present complaints. With respect to two of the three respondent municipalities, there is direct evidence of the importance of these attitudes at the time when mandatory retirement at age 60 was introduced in Windsor in 1971 and in Waterloo in 1973 or 1974.

78As far as St. Catharines is concerned, mandatory retirement at 60 was introduced in 1946 and no direct evidence was led relating to the discussion which preceded its introduction. It was Mr. Gray's submission on behalf of the City of St. Catharines that the subjective test is met by the evidence of Chief Fitzgibbon and others which indicates that retirement at age 60 has been supported at all recent times material to these complaints, on the basis of a concern for the health of firefighters and the safety of fellow employees and the public at large. That is to say, even if mandatory retirement had been introduced for some other reason in 1946, it is argued that the subjective element of the Etobicoke test is met as long as the rationale for the mandatory retirement scheme at the time of the retirement in issue is consistent with the bfoq defence raised by the employer.

79I find this reasoning persuasive. Otherwise, it would be highly difficult if not impossible to defend long standing practices under the provisions of the Code. Moreover, it does not seem inconsistent with the general policy of the Code to permit employers to adopt new rationales for old practices that are consistent with the Code. Although it may well be that shifting rationales should be subjected to careful scrutiny, there would appear to be no reason in principle for refusing to find that an employer who thought he was in compliance with the Code at a particular point in time was acting honestly within the meaning of the subjective element of the Etobicoke test.

80Moreover, there is simply no evidence in the present case that would suggest some ulterior motive for the reduction of the retirement age from 65 to 60 in each of the municipalities. Indeed, the evidence strongly suggests that the unions and employers alike thought that a benefit was being conferred on employees by reducing the retirement age and restructuring the pension plans in order to accommodate this earlier retirement scheme.

VI. The Objective Element of the Etobicoke Test

81The great bulk of the evidence led in these proceedings by the respondents was directed to the second branch of the Etobicoke test, that is, the requirement that the mandatory retirement age [per McIntyre J. at p. 20 of D.L.R., D/783 of C.H.R.R.] "must be related in an objective sense in the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public." In Etobicoke, of course, the Court stressed the importance of medical and statistical evidence relating to the impact of the aging process. In the present case, a considerable body of evidence of this kind was presented to the Board. Over a period of approximately two weeks, an impressive array of physiologists, cardiologists and a psychologist testified with respect to (i) the effects of aging on physical fitness, (ii) the increasing incidence of coronary artery disease with increasing age and (iii) the general decline in cognitive functions that accompanies the aging process. It was the respondents' submission that this evidence identified a number of important sources of defective performance: namely, fatigue, inadequate physical strength, the possibility of cardiac events and declining ability to perceive accurately and to make sound judgments in the context of the emergencies encountered in firefighting.

82In addition to this medical and statistical evidence, moreover, the respondents placed some emphasis on the impressionistic or anecdotal evidence presented by the firefighters who testified in this proceeding. It was noted that McIntyre J. in Etobicoke, supra, did not state that such evidence was irrelevant and to be discounted entirely. Rather, it was His Lordship's view that medical and statistical evidence, though it may not be absolutely necessary in all cases, will be more persuasive than the impressions of individuals who have been engaged in firefighting as a career. It is to this impressionistic evidence we first turn before summarizing the general thrust of the medical and statistical evidence.

A. THE IMPRESSIONISTIC EVIDENCE

83Counsel for the respondents suggested that three different types of evidence relating to the views of firefighters concerning retirement at age 60 were of assistance. First, it was noted that the belief that it is appropriate for firefighters to retire at age 60 for reasons of their personal health and for the safety of fellow employees and the general public is very widely held in the firefighting community. The union movement of firefighters in North America has promoted early retirement as a concept for these reasons for the last two or three decades. The respondents submit that this apparently widespread consensus of those most capable of direct observation of the deficiencies of the older employee and, indeed, of those whose personal safety is most directly implicated by the deficiencies of older employees, is entitled to some weight in a proceeding of this kind.

84Secondly, the respondents argue that the mere fact that the parties to the present proceeding, in Windsor and Waterloo at least, have freely bargained for mandatory retirement at age 60 and, in the case of St. Catharines, would be minded to do so if there were not such a scheme already in place is itself prima facie evidence of the reasonableness of this arrangement. Support for this view was drawn from the opinion of O'Sullivan J.A. in Manitoba Human Rights Commission et al. and City of Winnipeg et al., supra. In this case, the Manitoba Court of Appeal upheld a mandatory retirement policy at 60 years of age for staff inspectors in the Winnipeg Police Department. O'Sullivan J.A. dissented on the ground that the retirement policy in question applied to a broad range of occupations, not just staff inspectors, and therefore was vulnerable to attack. With respect to the mandatory retirement of staff inspectors at age 60, O'Sullivan J.A. was of the view that this was a defensible policy. In the context of explaining this view, O'Sullivan J.A. indicated in the following terms that he would be inclined to place considerable reliance on arrangements which were the result of free bargaining at p. 362 [of D.L.R., D/1258 of C.H.R.R.]:

What is reasonable in the circumstances is, I think, much more a matter of opinion than of drawing logical answers from scientific data. Searching for the answer to such a question is not unlike the search for an answer to the question of what is a just price or a just wage. It is easy to say that no one should charge an unreasonable price or demand an unreasonable wage, as traditional moralists often say, but how to decide what is reasonable? The solution adopted with respect to the reasonableness of prices and wages in our society has been to say that, subject to minimum protections and apart from monopoly situations, where parties are free, that is fair which is agreed. On the question of compulsory retirement age, where there is free collective bargaining, I should think a similar rule might apply: what is agreed should be accepted as fair and reasonable. Given free collective bargaining, the parties will know what is reasonable better than judges or experts. This is not to say that it is possible for citizens to contract out of the benefits conferred by human rights legislation but only to say that rules emerging from the free collective bargaining process are likely to be accepted as being in compliance with the legislation in so far as the requirement of reasonableness is concerned.

This opinion is not, of course, in any sense a binding authority for present purposes. Nor, however, do I find the reasoning persuasive. With respect, there appear to be a number of differences between wage bargaining and bargaining for an early retirement age. Most importantly, legislatures across the country have signalled, through human rights legislation, a public concern with respect to the possibility of discriminatory attitudes concerning older workers. If there is no legislated definition of a fair wage, then, there is a legislated definition of the kinds of attitudes that must not be involved in the negotiation of mandatory retirement. Accordingly, tribunals applying such legislation must be vigilant to ensure that arrangements and agreements concerning older workers are not animated by attitudes of this kind. Further, arrangements concerning retirement may well give rise to a conflict in the interests of younger and older workers and, indeed, amongst older workers themselves, which may be quite unrelated to concerns about the capacity of older workers to discharge their responsibilities. These conflicts do not, I think, find a precise parallel in bargaining for wages although, there too