HRTO 1990

The complainant, a police officer, alleged age discrimination after being mandatorily retired at age 60.

The respondents conceded a prima facie violation of the Ontario Human Rights Code but argued the policy was a bona fide occupational qualification (BFOQ).

Applying the Supreme Court's Etobicoke test, the Board of Inquiry found the respondents failed to establish both the subjective and objective elements of a BFOQ.

Subjectively, there was insufficient evidence that the policy was adopted with a sincerely held belief in its necessity for adequate job performance.

Objectively, while acknowledging age-related declines in aerobic capacity and increased cardiovascular risk, the Board concluded these factors did not render the age 60 limit reasonably necessary, as the essential duties of police work rarely require sustained aerobic limits and reasonable accommodation was possible.

The mandatory retirement policy was held to violate the Code.

The respondents brought a preliminary motion to dismiss a human rights complaint, arguing that a five-year delay between the alleged discrimination and the appointment of the Board of Inquiry constituted an abuse of process and impaired their ability to mount a full defence.

The Board of Inquiry denied the motion, finding that the respondents failed to demonstrate actual prejudice or that a proper defence had become impossible, as key witnesses were still available.

The Board directed that the hearing proceed, noting that the issue of delay could be raised again if actual prejudice became evident during the proceedings.

The complainant, a Black man, alleged that the respondent refused to sell him a cottage because of his race.

The respondent had initially been friendly to the complainant's white wife, but became reserved when the complainant arrived and falsely claimed his brother was interested in buying the property.

The respondent later admitted to the complainant's mother-in-law that he would not sell to a Black person.

The Board of Inquiry found that the respondent discriminated against the complainant on the basis of race, violating his right to contract on equal terms under section 3 of the Human Rights Code.

The respondent was ordered to pay $3,000 in general damages for the hurt and humiliation caused.

Two employees filed human rights complaints alleging racial discrimination and harassment.

One complainant was subjected to racial slurs and physical assaults by a co-worker.

The Board found the co-worker personally liable for racial harassment but dismissed the complaint against the employer, finding the employer did not condone the conduct and had disciplined the co-worker.

The second complainant, a union steward, alleged his termination was racially motivated.

The Board dismissed this complaint, finding the termination was based on the employer's belief that the complainant had counselled a work slow-down and his history of disruptive behaviour, rather than any racial motivation.

The complainant, a dairy farmer and member of the Free Presbyterian Church of Scotland, objected to shipping milk on Sundays for religious reasons.

The Ontario Milk Marketing Board (OMMB) accommodated 'no Sunday shippers' by providing alternate pickup days but charged them an extra transportation fee.

The Board of Inquiry found that the complainant's religious beliefs were sincerely held and protected under the Code.

The Board held that the OMMB's policy of assessing special transportation charges to 'no Sunday shippers' constituted constructive discrimination and that absorbing the costs would not cause undue hardship.

The OMMB was ordered to cease charging the extra fees prospectively.

The complainants, a Khalsa Sikh teacher and the Ontario Human Rights Commission, alleged that the respondent school board's policy prohibiting the wearing of kirpans on school property discriminated on the basis of creed.

The Board of Inquiry found that the policy, which classified the kirpan as a weapon, had an adverse impact on Khalsa Sikhs who are religiously mandated to wear it at all times.

The respondent failed to prove that accommodating the wearing of kirpans would cause undue hardship regarding school safety, especially given the lack of any incidents involving kirpans in Canadian schools and the respondent's willingness to accommodate proven violent students.

The Board ordered that Khalsa Sikhs be permitted to wear kirpans of reasonable size, worn under clothing and properly secured.

The respondent employer brought a motion to enforce a settlement agreement regarding two human rights complaints filed by the complainant.

The respondent and the Ontario Human Rights Commission understood the $7,500 offer to settle both complaints.

However, the complainant reasonably believed the offer only applied to her first complaint, as the second complaint was not discussed during settlement meetings with Commission counsel.

The Board of Inquiry found that because the complainant did not agree to settle the second complaint, and Commission counsel lacked authority to settle both, the settlement was not binding.

The respondent's motion was dismissed.

The Ontario Human Rights Commission requested an order compelling the respondent to produce mechanical aptitude test scores of ten female employees prior to the hearing.

The Board of Inquiry held that it lacked jurisdiction under the Statutory Powers Procedure Act to order pre-hearing document production, noting that a subpoena duces tecum must be requested at the hearing itself.

The Board further cautioned that a subpoena should not be used to cure deficiencies in the Commission's earlier investigation.

However, given the respondent's previous refusal to provide the documents and the significant delay in the case, the Board invited the respondent to produce the documents voluntarily and indicated it would look sympathetically upon a subpoena request at the hearing.

The complainant, a Seventh Day Adventist, was terminated from her employment as a laboratory technician because her religious beliefs prevented her from working a scheduled Saturday shift.

The Board of Inquiry found that both the employer and the union engaged in adverse effect discrimination on the basis of creed.

The employer failed to reasonably accommodate the complainant by not specifically offering to allow her to work on Sunday at straight time or to arrange a shift swap, and did not establish that such accommodations would cause undue hardship.

The union also failed to reasonably accommodate the complainant by refusing to agree to an exemption from the collective agreement's overtime provisions.

The respondents were ordered jointly and severally to pay damages for lost wages and interest, and to review their work rules to prevent future discrimination.

The complainant alleged she was terminated for requesting maternity leave.

She filed both a union grievance and a human rights complaint.

After the grievance was dismissed at arbitration, the respondents raised preliminary objections before the human rights Board of Inquiry, arguing the matter was res judicata and that the five-year delay in appointing the Board violated the Charter and constituted an abuse of process.

The Board dismissed the objections, finding that the arbitration did not finally determine the human rights issue, the parties were different, and the Charter provisions relied upon did not apply to civil human rights proceedings.

The complainant, a probationary employee, was terminated after being absent for three days within her first 29 working days, pursuant to the employer's unwritten attendance policy.

She alleged discrimination on the basis of handicap, claiming her absences were due to an asthmatic reaction to aspirin and the flu.

The Board of Inquiry dismissed the complaint, finding that the complainant's allergic reaction was the result of her own reckless negligence in taking unverified medication despite her doctor's warnings.

Furthermore, the Board held that the flu is a commonplace, transitory illness that does not constitute a handicap within the meaning of the Human Rights Code.

The complaint was deemed trivial and frivolous, and costs were awarded to the respondents on a solicitor-client basis.

The complainant, a spray painter, became pregnant and requested a transfer to an area without paint fumes based on her doctor's advice.

The employer initially accommodated her by moving her to a packing position but subsequently required her to take an unpaid leave of absence, citing concerns about air quality throughout the plant.

The Board of Inquiry found that the employer's refusal to continue accommodating the complainant constituted adverse effect discrimination on the basis of sex.

The employer failed to establish that continued employment in the packing area presented an undue risk, and thus did not fulfill its duty to reasonably accommodate the complainant's special needs as a pregnant worker.

The employer was ordered to pay damages for lost wages and mental anguish.