Yeomans v. Ottawa (City)

1993-02-10

Ontario Board of Inquiry

Ian Charles Yeomans and Ross Gerald Cook

Complainants

v.

Corporation of the City of Ottawa

Respondent

Date of Decision:

February 10, 1993

Before:

Ontario Board of Inquiry, Richard D. Abbott

Comm. Decision No.:

494

Appearances by:

Kim Twohig, Counsel for the Complainant Ian Charles Yeomans and the Ontario Human Rights Commission

Lawrence Greenspon, Counsel for the Complainant Ross Gerald Cook

Carey Thomson, Counsel for the Respondent

PHYSICAL DISABILITY — employment denied on basis of visual impairment (acuity) — definition of handicap includes visual acuity — INTERPRETATION OF STATUTES — definition of "bodily injury, illness or birth defect," "handicap," "includes," "including," "person," and "without limiting the generality of the foregoing"

Summary: The Board of Inquiry dismisses the complaints of Ross Cook and Ian Yeomans who alleged that they were discriminated against by the City of Ottawa because of their handicap. In 1982 and 1983 Mr. Cook and Mr. Yeomans applied to the City of Ottawa to be firefighters. They successfully completed the preliminary steps in the application process but both men were rejected because they did not have 20/20 vision in each eye, though both had 20/20 binocular vision and neither required corrective lenses.

The Board of Inquiry finds that the relatively minor visual impediments of the two complainants do not constitute handicap within the meaning of the Ontario Human Rights Code. In order to come within the definition, the Board rules that the complainants must prove that their visual impediment is caused by one of the three causative factors set out in s. 9(b)(1) of the Human Rights Code, namely: bodily injury, birth defect or illness. Since the complainants fail to demonstrate that their deficient monocular vision was caused by bodily injury, birth defect or illness, they do not have handicaps within the meaning of the Code.

The complaints are dismissed.

Cases Cited

Ede v. Canada (Armed Forces) (1990), 1990 CanLII 12442 (CHRT), 11 C.H.R.R. D/439 (Can.Trib.): 17

Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.): 26, 29

Séguin v. Royal Canadian Mounted Police (1989), 1989 CanLII 148 (CHRT), 10 C.H.R.R. D/5980 (Can.Trib.): 24

Legislation Cited

Canada

Canadian Human Rights Act, R.S.C. 1985, c. H-6: 15, 24

Nova Scotia

Human Rights Act, R.S.N.S. 1989, c. 214: 15

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53: 17

preamble: 12

s. 4(1): 6, 12, 37

s. 9: 13

s. 9(b)(i): 8, 12, 16, 21, 29, 36

s. 9(g): 36

s. 38(1)(a): 37

s. 39: 12

s. 40: 37

s. 40(1): 16

s. 40(6): 39

s. 45(c): 14, 36

Interpretation Act, R.S.O. 1980, c. 218: 17

INTRODUCTION

1Ross Cook and Ian Yeomans applied for positions as firefighters with the City of Ottawa in 1982 and in 1983, respectively. As part of the application process, each of them underwent a medical examination which included a test of visual acuity. Mr. Cook's visual acuity was determined to be 20/20 in the right eye and 20/50 in the left eye. His binocular vision (i.e., vision with both eyes in use) was determined to be 20/20. Mr. Yeomans' visual acuity was determined to be 20/20 in the right eye and 20/50 in the left eye. Subsequently an examination by an ophthalmologist revised the visual acuity result for Mr. Yeomans' left eye to 20/25 and determined that his binocular vision was 20/20. All these results were for uncorrected vision, that is to say, the results were obtained without the complainants having the assistance of corrective lenses. Neither Mr. Cook nor Mr. Yeomans wore glasses at the time nor were they advised that they should obtain them by their medical advisors.

2Both Mr. Cook and Mr. Yeomans were notified that they were rejected as candidates for the position of firefighter. The asserted reason for rejection was that they had failed to demonstrate the visual acuity standard then employed by the City of Ottawa in assessing candidates for firefighter positions, namely, uncorrected visual acuity of 20/20 in each eye. (For convenience of reference, the term "binocular" will be used hereafter to refer to vision using both eyes, whereas "monocular" will be used to refer to vision using one eye or the other eye, recognizing that the term "monocular" is a term of art used in a different sense by ophthalmologists and optometrists.) The distinction between binocular and monocular vision is important since the City's vision standard for applicants for firefighter positions is a monocular standard, whereas the Commission and the complainants assert that a binocular standard is more appropriate.

3As a result of their rejection, Mr. Cook and Mr. Yeomans were not permitted to proceed with the rest of the application process, which would have entailed a fitness (or strength) test, an agility test and a personal interview. They had already successfully completed the preceding steps in the process, namely, completion of an application form, a written examination and a security check. In each case their medical examination was satisfactory in all aspects except for the failure to demonstrate uncorrected visual acuity of 20/20 in each eye. (The evidence before this Board of Inquiry established that, in layman's terms, visual acuity of 20/20 would indicate an ability to see at twenty feet what the average person would be able to see at twenty feet, while visual acuity of 20/50 would indicate an ability to see at twenty feet what the average person would be able to see at fifty feet, and so on.) It is quite clear that the sole reason why Messrs. Cook and Yeomans were prevented from proceeding with the remaining steps in the application process, and potentially being fully eligible for selection for a position as a firefighter, was their failure to meet the City's visual acuity standard. At the time of their applications, each was 21 years of age and in good physical condition. There is reason to predict that each would have successfully completed the remaining steps in the application process and thereby become eligible for selection. It should be noted, however, that not all candidates who successfully complete the application process are selected and offered positions as firefighters. The numbers of eligible candidates offered positions varied with the number of available vacancies in the Fire Department's complement.

4Following their rejections, Messrs. Cook and Yeomans complained to the Ontario Human Rights Commission. For a number of reasons there ensued a long delay before the complaints of Messrs. Cook and Yeomans were referred to myself as a board of inquiry. My appointment as the Board of Inquiry is dated September 5, 1989. Hearings to receive evidence, and extensive written argument, were completed January 7, 1991. The delay since then in rendering a decision is my responsibility.

5The complaints of Messrs. Cook and Yeomans were consolidated for hearing. The respondents named in the complaints were the Corporation of the City of Ottawa, M. Sincennes and John Cyr (employees of the City) and the Ottawa Fire Department. Counsel appearing for the Corporation of the City of Ottawa undertook to represent the individual respondents and the Fire Department as well as the City, and also undertook, in effect, that if the complaints were found to be well-founded the City would accept liability on its own behalf and on behalf of the individual respondents and the Fire Department.

6The Commission and complainants assert that the rejection of the complainants for the reason that they failed to satisfy the City's visual acuity standard constituted an infringement of the complainants' right to equal treatment with respect to employment without discrimination because of handicap, in the terms of the Human Rights Code, 1981, S.O. 1981, c. 53, s. 4(1). The remedies sought for this infringement are, briefly, compensation for lost wages and other benefits, general damages, an opportunity for the complainants to complete the application process and, if successful, an offer of the first available positions as firefighters, and an order requiring the City to amend its vision standards so as to conform to the requirements of the Human Rights Code, together with other consequential relief such as interest. By agreement, this Board of Inquiry was to retain jurisdiction to resolve any difficulties arising out of the implementation of its decision, in the event that the complaints were sustained.

7It was unchallenged that the sole reason why the complainants were not permitted to continue with the application process was their failure to satisfy the City's visual acuity standard for firefighter candidates of 20/20 in each eye. It is also quite clear that the only prohibited ground of discrimination allegedly used by the City in respect to the employment of these applicant firefighters was the ground (set out in s. 4(1) of the Code) of "handicap." The stance of the City at the hearing of this matter was that its monocular 20/20 visual acuity standard was a bona fide occupational requirement, and most of the voluminous evidence in the case related to that issue.

8Argument for the parties was in written form, starting with submissions for the Ontario Human Rights Commission and Yeomans, followed by submissions by counsel for Cook. When submissions were made by counsel for the City, it was only then, for the first time, that it was argued that the reason why the complainants were not permitted to continue with the application process, namely, their impaired visual acuity, was not a "handicap" in the terms of s. 9(b)(i) of the Code. In her reply, counsel for the Commission quite justifiably asserted that she had presented her case for the Commission on the assumption that the City conceded that the complainants' impaired visual acuity was a "handicap." Accordingly, she asked that the hearing of this case be reopened. Counsel for Mr. Cook did not address the issue of the existence of "handicap" in his written submission.

9There was justification for counsel for the Commission's assumption that the City conceded the existence of "handicap" in the terms of the Code. There had been no challenge to my jurisdiction to hear and determine the complaints made in a timely and proper manner at the start of these proceedings. Nor had there been a challenge on behalf of the City that a prima facie case had not been made out for the Commission or the complainants. The evidence for the City had been presented entirely on the issue of whether the City's monocular 20/20 standard was justified as a bona fide occupational requirement. These considerations led me to accede to the request of counsel for the Commission to reopen the hearing. I also made use of the reopened hearing to obtain the submissions of counsel on another matter, namely, the remedy to be ordered in the event that I upheld the complaints.

10At the reopened hearing no new evidence was tendered. Oral submissions were made which enlarged on what had been said in the written submissions relating to the issue of "handicap," more particularly, the interpretation and application of the definition of "handicap" set out in s.209(b)(i) of the Code. In the summary that follows of the submissions for the parties, I have consolidated those parts of the written submissions relating to the "handicap" issue with the relevant oral submissions made at the reopened hearing. It bears repeating that the asserted "handicap" suffered by the complainants was only impaired visual acuity, inadequate to meet the City's visual acuity standard for firefighter candidates. It has been established that that was the ground for their being denied the opportunity to proceed with the application process. It is clear that if their impaired visual acuity was not a "handicap" as defined in s. 9(b)(i) of the Code, then they cannot be found to have been discriminated against in relation to employment on a prohibited ground, and their complaints must fail.

11I think it essential to state that the determination of this issue must not be influenced by what I am sure is the generally held opinion, that the blurred vision produced by impaired visual acuity is very much a hindrance to many activities. The observed widespread use of spectacles and contact lenses, to correct vision problems, testifies to the truth of this general opinion. It will be objected that impaired visual acuity is obviously a handicap, a matter so obvious as to be beyond challenge. But, I am bound to interpret and apply the term "handicap" as it is defined in the Code and, if that results in an unexpected meaning being attached to the term in the circumstances of this case, so be it.

STATUTORY PROVISIONS

12These complaints fall to be determined pursuant to the Human Rights Code, 1981, S.O. 1981, c. 53, as amended 1984, c. 58, s. 39. The Code begins with a preamble which, inter alia, asserts that

[I]t is the public policy of Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law . . .

Section 4(1) reads as follows:

4 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, [sexual orientation,] age, record of offences, marital status, family status or handicap.

I pause at this point to note that the portion of the preamble quoted above indicates an intention not to protect every person from every form of discrimination but only from discrimination that is "contrary to law." It is in the text of the Code that we find what forms of discrimination are "contrary to law." Sections 1 to 6 of the Code set out various situations or relationships in which discrimination is prohibited, e.g., services, accommodation, contracts, employment, etc. Sections 1 to 5 in each instance enumerate the prohibited grounds of discrimination, e.g., race, ancestry, etc. The grounds enumerated in each section are almost identical, with a few exceptions. Sections 2(1) and 2(2), prohibiting discrimination in accommodation, add "the receipt of public assistance" to the standard enumeration of prohibited grounds. Sections 4(1) and 4(2) add "record of offences" to the standard enumeration of prohibited grounds, and s. 4(2) omits "sex" as a prohibited ground (for harassment in employment, sexual harassment being the subject of s. 6). Sections 1, 3 and 5 have identical lists of prohibited grounds of discrimination. No doubt there exist reasons for the varying lists of prohibited grounds as set out in ss. 1 to 5. What I deduce from my perusal of these sections, in the light of the preamble, is that it was by no means the intent of the Code to prohibit all forms of discrimination, in all situations or relationships, and on all grounds. It follows that, if the pertinent section of the Code which is crucial to the determination of this case, namely s. 9(b)(i), sets out any conditions or limitations, effect must be given to those conditions or limitations. More particularly, if a fair reading of s. 9(b)(i) indicates that only "physical disability, infirmity, malformation or disfigurement," which is caused in enumerated ways, is to be considered a "handicap," I have no option but to give effect to the intended limitation. Not all physical disabilities, etc., howsoever caused, are "handicaps" for the purposes of the Code.

13Section 9(b)(i) appears in Part II of the Code, which Part is entitled "Interpretation and Application." Section 9 reads as follows, with the omission of extraneous provisions:

9. In Part I [the Part setting out the situations or relationships and prohibited grounds of discrimination] and in this part,

(a) "age" means . . .

(b) "because of handicap" means for the reason that the person has or has had, or is believed to have or have had,

(i) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a dog guide or on a wheelchair or other remedial appliance or device,

[Paragraphs (b)(ii) to (f) omitted]

(g) "marital status" means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage;

[Concluding paras. (h) to (j) omitted]

14I have considered it desirable to quote para. (g) above, a paragraph otherwise irrelevant, in order to point out the significant change in terminology from "including" in para. 9(b)(i) to "includes" in para. 9(g). I take the significance of this change in terminology to be as follows. In para. 9(b)(i), the enumeration which follows the word "including" is intended to be a clarification of the class of physical disabilities, etc., caused in the named ways. On the other hand, in para. 9(g), the description which follows the word "includes" clearly is meant to make it certain that "marital status" includes the status thereby described. If it had been the intent that the enumerated conditions which follow the word "including" in para. 9(b)(i) were an expansion on the terms "physical disability infirmity, [etc.]" without the limitations of the intervening enumerated causes, then I would have expected the construction to parallel that in para. 9(g) by using the word "includes" in place of "including." Put another way, it seems that where an enumeration or description is intended to add to the word or expression being defined, the word "includes" precede[s] the enumeration or description. This same use of the word "includes" appears in s. 45(c) of the Code, where the interpretation of the word "person" is expanded to include various organizations, whether or not incorporated, which one otherwise would not reasonably expect to be covered by the word "person." It seems that where the enumeration or description clarifies a definition which would be complete in itself (" . . . physical disability . . . that is caused by bodily injury [etc.] . . .") and is not intended to add to the meaning of the word or expression being defined ("because of handicap"), then the word "including" precedes the enumeration or description. I can suggest no other rationale for the change from "including" in para. 9(b)(i) to "includes" in para. 9(g). More will be said of this later in this decision.

15It should be noted that the definition of "because of handicap" in the Ontario Code is paralleled in the Nova Scotia Human Rights Act [R.S.N.S. 1989, c. 214] and the federal Canadian Human Rights Act [R.S.C. 1985, c. H-6]. I have not been referred to any decisions by courts or by boards of inquiry under any of these three statutes which determine, directly or indirectly, the issue of whether impaired visual acuity constitutes a "handicap" for the purposes of the particular statute. I have been referred to numerous decisions and have found several decisions under the federal Act (sent to me as a member of the federal panel of members of human rights tribunals) which deal with allegations of discrimination on the ground of handicap in the form of impaired visual acuity. But, to my knowledge, all these decisions proceed on the assumption that impaired visual acuity falls within the definition of "handicap" as set out in their respective statutes. None address the specific issue as presented in the present case.

ONUS

16Existence of handicap in the circumstances of this case might be characterized as a jurisdictional fact or as an element of a prima facie case. Although the non-existence of proof of handicap was raised as an issue by counsel for the City, and without determining whether the issue is jurisdictional or goes to the establishment of a prima facie case, it appears to me that it is essential to establish that impaired visual acuity is a handicap in the terms of s. 9(b)(i) of the Code, if a determination is to be made that a right under the Code has been infringed (Code, s. 40(1)). Accordingly, it is my determination that the onus was on the Commission and the complainants to show that the complainants' impaired visual acuity was a handicap in the terms of s. 9(b)(i). I set out below the submissions for the parties on the basis of that assumption.

SUBMISSIONS FOR THE PARTIES

17For the Commission, Ms. Twohig made the following submissions. Initially, citing the Board of Inquiry decision in Ede v. Canadian Armed Forces (1990), 1990 CanLII 12442 (CHRT), 11 C.H.R.R. D/439, she asserted that the definition of "handicap" in s. 9(b)(i) is broad enough to include any visual impediment which precludes a person from obtaining employment. She reminded me that the Interpretation Act [R.S.O. 1980, c. 218] obliges me to give the Code, as remedial legislation, such "fair, large and liberal construction and interpretation as will best ensure the attainment of the intent and spirit of the legislation." In the context of the present case, the intent and spirit of the Code is to ensure that individuals are not deprived of employment [opportunities?] as a result of a physical characteristic which is beyond their control. They should be judged on their qualifications and abilities. The broad reach of the definition of "handicap" is confirmed, she argued, by the references in s. 9(b)(i) to mere "belief" in the introductory words (so that actual existence of a handicap need not be established), "any degree of physical disability" (no matter how minor), "without limiting the generality of the foregoing" (emphasizing that "injury, illness or birth defect" are to be interpreted very generally) and "any degree of . . . visual impediment" (again, suggesting a broad interpretation). She submitted that, as a result, "injury, illness or birth defect" are intended to be even more general than any degree of visual impediment. She would conclude that even a minor deviation from what is considered to be normal visual acuity may be considered a handicap under the Code if a person is precluded from obtaining employment as a result, because that is the purpose of the Code. Subsequently, Ms. Twohig restated this point as follows (Transcript, vol. 7, p. 14, lines 4–8):

And if it [deteriorated or less than normal visual acuity] is something which disqualifies us from an important and vital activity in life such as employment, then it must be considered a defect [as in "birth defect"] for the purposes of the Code — if the Code is to have the effect which I submit was intended by the legislature.

18Ms. Twohig conceded that there was no evidence in this case that the impaired visual acuity of the complainants was the result of injury or illness. She therefore focussed her attention on "birth defect" as a cause of impaired visual acuity. She argued that the term must mean "anything that a person is born with, whether it was readily apparent at birth or manifested itself later in life, as a part of a person's genetic make-up." She suggested that impaired visual acuity must be caused by something, if not by illness or injury then, necessarily, by birth defect. When I asked her directly whether it was her assertion that the complainants' impaired visual acuity was caused by heredity, Ms. Twohig could not, of course, do more than concede that the deterioration of vision that occurs during one's lifetime may not necessarily be a birth defect (Transcript, vol. 7, p. 14, lines 1–3):

[I]t has to do with the way we were born, with the way our parents were, perhaps our grandparents. And, therefore, it is part of our genetic make-up.

19The problem Ms. Twohig had with this latter submission is that, as to the present two complainants, there is no evidence of their visual acuity at birth. There was evidence that complainant Yeomans had to wear corrective lenses for a brief period in elementary school. Otherwise, there was no evidence to show that either complainant was born with impaired visual acuity, or that their perfect vision at birth deteriorated in the normal way as they aged, or that their impaired visual acuity at the time of their application to the Ottawa Fire Department was caused by something else. In her argument, Ms. Twohig expressed her recognition of this difficulty. However, it was her position that whether the impaired visual acuity was present at birth, or manifested itself later in life, it could still be classified as a birth defect.

20Finally, Ms. Twohig pointed to the term "any degree of . . . visual impairment" as it appears in s. 9(b)(i). Anything less than 20/20 is an impediment and must fall within the section, was her conclusion.

21Mr. Greenspon, counsel for complainant Cook, echoed the submissions of Ms. Twohig. The intent of the Code was that the definition of "handicap" be given the broadest possible interpretation. He pointed, first, to the introductory words of s. 9(b)(i) which state that the physical disability, etc., may be one which the individual had, or is even only believed to have or have had. The "belief" is that of the alleged discriminator, again indicating a broad intent. Secondly, subparagraph (i) is introduced by the words "any degree," covering the very slightest disability, etc. The City's position is, as understood by Mr. Greenspon, that the disability, to be a "handicap," must reach a certain level. Yet, at the same time, the City treated the complainants' level of impaired visual acuity as disabling them from being firefighters. The City cannot argue both ways. Thirdly, three causative factors (bodily injury, illness, birth defect) are set out in the definition, but they are only given as examples. This is demonstrated by the fact that those three causative factors are followed immediately by the words "without limiting the generality of the foregoing." The three are not limits. In any event, those causative factors should be interpreted in a very broad way.

22Mr. Greenspon reviewed evidence concerning his client's visual testing. Dr. Peacocke's report on complainant Cook's tests stated that his past ocular and general medical histories were "apparently normal and not contributing," from which Mr. Greenspon would conclude that illness and physical injury can be ruled out as causative factors. He would ask me to find that Mr. Cook had his condition for a long time, that it only came to light when he was tested for the purposes of his employment, and that it was a latent defect. Birth defect should not be interpreted as limited to something a person has and manifests itself at birth. A birth defect can be a condition which, like hearing loss, is latent, present from birth, but manifested over time. In Mr. Greenspon's opinion, it does not matter, for the purposes of the Code definition, when the defect manifests itself. It cannot have been intended that complainants be placed in the impossible position of having to demonstrate that their disability had existed from the moment of their birth. As long as the disability is present at the time of alleged discrimination (or existed in the past or is believed to exist or have existed) that is sufficient.

23Mr. Thomson, counsel for the City, in his initial submissions made the direct point that the complainants' impaired visual acuity at the time they were rejected as firefighter candidates was not shown by evidence to have been "caused by bodily injury, birth defect or illness." The requirement to establish at least one of these causative factors limits the breadth of s. 9(b)(i); effect must be given to that requirement. There was no evidence that the complainants had had uncorrected 20/20 vision in each eye at birth or subsequently, and that "bodily injury, birth defect or illness" reduced their vision to the level it was at the time of their rejection. There only was evidence from Dr. Leonard that there was a natural degradation of visual function over a person's lifetime (Transcript, vol. 5, p. 81, line 30–p. 82, line 1).

24Furthermore, Mr. Thomson submitted, there are indications in the concluding enumeration in s. 9(b)(i) that the legislative intention was that, to be considered a handicap, the "physical disability," etc., must impose substantial ongoing limits on one's activities. The enumeration lists "blindness or visual impediment" and "physical reliance on a dog guide," both suggesting more than merely minor visual problems. In support of this submission, Mr. Thomson cited Séguin v. Royal Canadian Mounted Police(1989), 1989 CanLII 148 (CHRT), 10 C.H.R.R. D/5980, a human rights tribunal decision pursuant to the Canadian Human Rights Act. In that case, it appeared that both complainants had uncorrected visual acuity which was worse than 20/40 in one eye and 20/100 in the other. Evidence in the present case was that visual acuity of 20/100 is only one line short of legal blindness (Transcript, vol. 5, p. 70, line 30–p. 71, line 3). Mr. Thomson asked me to conclude, on that basis, that the disabilities in the Séguin case were substantial ongoing limits on the complainants' activities. Presumably, Mr. Thomson would ask me to go further to find that the case stands for the proposition that impaired visual acuity, to be a "handicap," must relate to visual acuity less than uncorrected acuity of 20/40 in one eye and 20/100 in the other. Since the visual acuity of neither complainant in the present case was as bad as that, their disability was not of such a degree as to constitute a "handicap."

25If I have correctly analyzed Mr. Thomson's argument based on the Séguin case, supra, then I must reject it. The decision in that case did not involve a determination of the meaning of "handicap." Nor did the decision dismiss the complaints on the basis that the complainants' impaired visual acuity was not a "handicap." Rather, the Tribunal found that the RCMP visual acuity standard was a bona fide occupational requirement and this was the foundation for the dismissal of the complaints.

26Mr. Thomson also relied on the Ontario Board of Inquiry decision in Ouimette v. Lily Cups Ltd. (1990) (unreported) [now reported 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19]. Mr. Thomson stated the issue in that case as being, "whether a transitory illness such as an allergic reaction or a viral infection, commonly called the flu, was a 'handicap' within the meaning of s. 9(b)(i) of the Code." The Board dismissed the complaint on the ground that the complainant did not have a "handicap" as defined by the Code. Mr. Thomson quoted various portions of the Ouimette decision which held, first, that the onus of proving "handicap" lay on the Commission; and secondly, that since the flu affects everyone and is usually of short duration, it was not the intention of the legislation to protect such a large group from this sort of disability. Such an interpretation would adversely affect "The high purpose otherwise achieved by the interpretation provision [s. 9(b)(i)] in protecting those who are actually or perceived to be materially impaired through illness." In essence, Mr. Thomson's citation of the Ouimette decision was to buttress his position that, to be considered a "handicap," a physical disability must impose substantial ongoing limits on one's activities.

27Mr. Thomson challenged Mr. Greenspon's assertion that, if some condition manifests itself over a period of time (i.e., without the intervention of causation in the form of bodily injury or illness), then it necessarily must be considered a birth defect. Mr. Thomson's response was that there was no medical evidence presented in this case which would suggest that that is so. The only relevant item of evidence was the testimony of Dr. Leonard, referred to earlier, that there was a natural degradation of visual function over a person's lifetime. (I pause at this juncture to point out that no questions were put to Dr. Leonard which would draw out what he meant by "natural" degradation. One wonders whether he would have explained that "natural" refers to degradation not caused by bodily injury or by illness or by birth defect.)

28In reply, Ms. Twohig made the following submissions. It is absurd to place an onus on the complainants to prove one of the causative factors set out in s. 9(b)(i) of the Code. In many cases, the complainant will not know what caused his or her disability. The absurdity is made clear when one considers that a handicap may be something which the complainant is believed to have or have had. The duty of the employer is to accommodate physical disability, yet the strict interpretation insisted upon by the City would require that the employer must first be convinced that the physical disability was caused by one of the three listed causative factors, a burden the applicant for employment cannot reasonably be expected to bear (Transcript, vol. 7, p. 52, lines 9–12).

If there is an obligation here for anyone to prove what the cause was in this case, it must be on the City which has perceived the handicap, not on the Complainants who deny that they have one.

(I interpret this quoted argument as suggesting that the onus should be on the alleged discriminator to prove that some cause other than "bodily injury, birth defect or illness" was the cause of the complainants' physical disability. If I am correct in this understanding of Ms. Twohig's argument, then the response must be that it is equally, or more, difficult for the discriminator to prove the cause than it is for the complainants. If it is absurd to impose the onus to prove causation on the complainants, then it is many times more absurd to impose that onus on the alleged discriminator.)

29As to the Ouimette decision, supra, relied on by Mr. Thomson, Ms. Twohig asserted that the cause for the dismissal in that case had to do with the Board's finding as to the complainant's credibility, and a legal point which Ms. Twohig quoted as set out in the decision [at p. D/33, para. 59] as follows:

It is not the handicap qua handicap that results in protection for the individual. Rather, it is the denial of equal opportunity, in this instance, where an employer imposes an artificial barrier to employment because of handicap that in fact presents no real inability to do the job. Applied to the assumed facts in this matter, the employee was absent for one day because, through an act of reckless negligence, contrary to the express instructions of her doctor, she took medicine, namely, aspirin, to which there was sure to be an allergic reaction. How is it possible to say that the employer imposed an artificial barrier to her employment on the basis of handicap? [Emphasis in original.]

Ms. Twohig's analysis of the Ouimette decision appears to accord with that of Mr. Thomson, to the extent that both see the decision as interpreting the definition of "handicap" as being something of an ongoing nature which substantially limits one's activities. I would add that, in its rejection of the allergic reaction to aspirin as a "handicap," the decision in Ouimette apparently relies on the principle that negligently self-induced physical disability removes that disability from the category of "handicap." For the purposes of the present case, that principle, which I respectfully endorse, demonstrates that the three causative factors set out in s. 9(b)(i), i.e., bodily injury, illness or birth defect, are not an exhaustive list. Just as Dr. Baum holds in his Ouimette decision, as I read it, that physical disability which is negligently self-induced cannot have been intended to come within the definition of "handicap," so in the present case I am prepared to hold that there may be other causes of physical disability than the three that are specified. It is for the Commission and complainants to prove that the disability in question here was brought on by one or another of the named causes. If the disability was not brought on by one of the named causes, then the disability is not a "handicap" in the terms of s. 9(b)(i).

30The decision in Ouimette, supra, really has two quite distinct parts. As to the allergic reaction to the complainant's consumption of aspirin, the Board (Dr. Baum) expresses his concern as to the complainant's credibility and says, in effect, that even if the facts be assumed as testified to by the complainant, her allergic reaction did not fit within the definition of "handicap" as it was negligently self-induced. The second part of the decision deals with alleged handicap in the form of a two-day bout of influenza. In the light of testimony that that illness is of a transitory nature and that everyone is subject to attacks of influenza, Dr. Baum holds that a "handicap" must be of an ongoing nature (or at least, as in the case of an episodic event like heart attack, can be perceived as being an ongoing material source of impairment to do a job). He finds that that was the legislative intent, as well as a negative intent not to protect everyone from discrimination on the basis of a condition — an illness — which affects everyone. In this second part of the Ouimette decision, one sees again the imposition of limits on what superficially appears to be a very broad definition. With respect, I agree with Dr. Baum that the legislative intent must have been that there are limits on what physical disabilities are "handicaps."

31In concluding her reply submissions, Ms. Twohig touched on the causative factors "illness" and "bodily injury." She noted that there was evidence that the problems of the complainants "are referred to as myopic refractive errors or something to that effect." The use of that medical term, she argued, would indicate some degree of illness. She went on to suggest that "bodily injury" must be intended to encompass a very broad range of factors which result in disability of some kind to the individual. She gave examples of such factors: gravity causing bodily injury in the form of deterioration and compression of the vertebral discs, pollution in the environment causing bodily injury to the lungs, repeated motions and actions causing bodily injury, and deterioration to vision caused by reading too much in the dark or watching television too closely. However, having made these observations as to "illness" and "bodily injury," Ms. Twohig cautioned against restricting the application of the Code by narrowing a general definition and by parsing overly carefully the words chosen by the legislators.

32In his reply submissions, Mr. Greenspon repeated his earlier argument that s. 9(b)(i) is intended to be interpreted broadly. He emphasized the placement of the words "and without limiting the generality of the foregoing." The generality referred to is the generality of all that went before. In interpreting the words that precede "and without limiting . . ." one should avoid inquiring into precisely what caused a physical disability, splitting hairs as to causation. This was not the legislative intention and common sense is against it.

DECISION ON THE "HANDICAP" ISSUE

33The evidence in this case is equally important for what was proven and for what was not proven. We know that complainants Yeomans and Cook applied for employment as firefighters. Visual testing, as part of the application procedure, revealed that each of them had monocular vision in one eye less than 20/20. I have described this condition throughout this decision as "impaired visual acuity." The complainants were prevented from proceeding with the application process solely because of their impaired visual acuity. Their formal complaint pursuant to the Code alleged discrimination of the prohibited ground of handicap.

34There is no evidence specific to these complainants which would support a finding as to the cause of their impaired visual acuity. There is no evidence that their impaired visual acuity was a bodily injury inflicted by their environment, previous misuse of their eyes or otherwise, only a suggestion, a hypothesis, that there might have been bodily injury of that sort. There is no evidence that their impaired visual acuity was caused by illness nor is there evidence as to the meaning of "illness" in the context of s. 9(b)(i) of the Code. While there is evidence that the complainants' condition is medically described as "myopic refractive error," there is no evidence that this condition was caused by illness or is an illness in itself. Finally, as to whether the complainants' impaired visual acuity was caused by birth defect, there is no evidence which would lead to a conclusion that the complainants' condition was present in each case at birth or was a latent condition manifested at some time prior to the visual testing as part of the complainants' application process. There is evidence in the form of testimony by Dr. Leonard, that there was a natural degradation of visual function over a person's lifetime. In addition, I announced at the December 17, 1992, hearing that I was taking adjudicative notice of the facts set out hereafter, and no challenge was made to my so doing. The facts of which I took adjudicative notice were announced in the following terms (Transcript, vol. 7, p. 17, lines 23–26):

[V]isual acuity deteriorates with the aging of the individual. And secondly, that the deterioration occurs in a large percentage, at least 50 per cent, of the general Canadian population.

Of course, neither Dr. Leonard's testimony, nor the facts of which I took adjudicative notice, could form the basis for a determination that visual acuity deterioration is a birth defect or, more importantly, that the impaired visual acuity of these complainants was caused by birth defect.

35In my view, the thrust of the arguments for the Commission and the complainants is that if s. 9(b)(i) is given the general interpretation which would serve the objects or purposes of the Code, then the three causative factors (bodily injury, illness or birth defect) can be disregarded. Alternatively, those three causative factors must be broadly interpreted. For reasons set out earlier in this decision, I cannot accept either approach. The very presence of those factors, which I have called "causative factors" because they are introduced by the words " . . . that is caused by . . .," must be taken as indicative of a legislative intention that effect must be given to them. They are not "examples" as suggested by Mr. Greenspon. They are limitations. Only a physical disability, infirmity, malformation or disfigurement that is caused in one or other of the specified ways fulfills the definition of "handicap."

The decision in Ouimette, finding that negligently self-induced physical disability is not a handicap, clearly demonstrates that causes of physical disability, etc., other than the three specified causes, can exist and are intended to be excluded. I would adopt Dr. Baum's reasoning in this regard as my own to hold that only physical disabilities, etc., proven to be caused by one or another of the listed causative factors will fulfill the requirements of the definition of "handicap."

36I have not lost sight of the term "visual impediment" appearing in s. 9(b)(i)'s definition. The term appears in a listing of various physical conditions. The list is introduced by the word "including." As I indicated earlier in this decision, I attach some significance to the difference between the word "including" in s. 9(b)(i) and the word "includes" in s. 9(g) and s. 45(c). As I said, it seems that where the intent is to add to what precedes, the word used is "includes." In the instance of s. 9(g), if the reference to what is commonly referred to as "common law marriage" were not expressly set out, the definition of "marital status" in s. 9(g) would not cover "common law marriage." By contrast, the list of conditions which follow the word "including" in s. 9(b)(i) are, in my opinion, all conditions which can be physical disabilities, infirmities, malformations or disfigurements caused by bodily injury, illness or birth defect. It follows that the list in s. 9(b)(i) is not intended to expand on the category created by the words that precede the word "including." Each condition in the list is an example, given to resolve any doubts, but not intended as a discrete disability, etc., standing alone in isolation from the category created by the words "physical disability [etc.] . . . that is caused by bodily injury [etc.] . . ." The words "and, without limiting the generality of the foregoing . . ." do not detract from the interpretation I have just set out. Those words caution the reader, first, that the category created by the words "any degree of physical disability [etc.] . . . caused by bodily injury [etc.] . . ." may include more conditions than those set out in the list, and secondly, that it is not intended that the category created by the words "any degree of physical disability [etc.] . . . caused by bodily injury [etc.] . . ." is to be limited to only those conditions which are similar to the conditions set out in the list. Put another way, the words "and, without limiting the generality of the foregoing" stave off the application of the ejusdem generis rule, a rule of interpretation which dictates that general words be interpreted so as to accord with the common elements of a listing which forms the context in which the general words appear. In sum, it would not be sufficient for the Commission and complainants, to establish a "handicap," simply to prove that the complainants' impaired visual acuity was a "visual impediment." To satisfy s.209(b)(i)'s definition, there must be proof that the physical disability alleged to be a handicap falls within the category created by the words "any degree of physical disability [etc.] . . . caused by bodily injury [etc.] . . .," even though that disability might at the same time be in the list of conditions which includes "visual impediment."

37On whom does the onus lie to prove the existence of one or the other of the listed causative factors? My determination, set out earlier in this decision, is that the onus rested on the Commission and the complainants. To attract a remedy for discrimination pursuant to s. 40 of the Code, there must be a determination that a right of the complainants under the Code has been infringed, pursuant to s. 38(1)(a) of the Code. The right the Commission and the complainants allege was infringed, in order to attract a remedy under s. 40, is the right to equal treatment with respect to employment without discrimination because of handicap, pursuant to s. 4(1) of the Code. The elements of a case for complainants Yeomans and Cook and the Commission which may attract a remedy are, therefore, proof of discriminatory unequal treatment with respect to employment (of which there is ample evidence), and proof that the discrimination was "because of handicap" (which requires satisfying the elements of the definition of "because of handicap" in s. 9(b)(i)). It follows that, if the Commission and the complainants are to be awarded a remedy for the discrimination with respect to employment which the complainants have suffered, they must satisfy the elements of the s. 9(b)(i) definition. The onus is on them, and I must reject the argument advanced by Ms. Twohig that absurdity, or great difficulty of proof, should lead me to impose the onus on the alleged discriminator, the City.

38My analysis of the definition in s. 9(b)(i) convinces me that proof of one or another of the listed causative factors is essential to fulfilling the requirements of the definition. This is so whether the words naming the causative factors are given a broad or restricted meaning. As I found in my summary of the evidence set out above, there was no evidence to establish any of the causative factors. I cannot make a finding, absent supporting evidence, which would be based solely on conjecture, hypothesis, suggestion, or even a priori reasoning, as argued by counsel for the Commission and the complainants.

39I must therefore hold that the complainants' physical disability consisting of impaired visual acuity, not having been proven to have been caused by bodily injury, illness or birth defect, was not a "handicap" and the discrimination with respect to employment which they suffered was not "because of handicap." I cannot, therefore, determine that a right of the complainants has been infringed, as a basis for ordering a remedy pursuant to s. 40 of the Code. Therefore, the complaints are hereby dismissed. This is not a case for ordering costs be paid by the Commission to the City pursuant to s. 40(6).