Espey v. London (City), 2008 HRTO 412

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edwin Espey

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

The Corporation of the City of London and

London Professional Fire Fighters’ Association

Respondents

DECISION

Adjudicator: David A. Wright

Date: December 18, 2008

Citation: 2008 HRTO 412

Indexed as: Espey v. London (City)

APPEARANCES

Edwin Espey, Complainant ) On His Own Behalf

Corporation of the City of London, Respondent ) Peter J. Thorup and

) R. Lance Ceaser, Counsel

London Professional Fire Fighters’ Association, ) Howard Goldblatt and

Respondent ) Charlene Wiseman,

) Counsel

Ontario Human Rights Commission ) Anthony D. Griffin,

) Counsel

INTRODUCTION

1This case is about whether the mandatory retirement age of 60 for suppression firefighters, negotiated in their collective bargaining agreement by the City of London (the “City”) and the London Professional Fire Fighters’ Association (the “Association”), violates the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complainant, Edwin Espey, was a District Chief in the London Fire Department (the “Fire Department”) when he turned 60 and was required to retire. He and the Ontario Human Rights Commission (the “Commission”) take the position that the collective agreement provision requiring retirement at age 60 constitutes discrimination in employment on the basis of age that has not been justified by the respondents.

2The City and Association concede that the provision is prima facie discriminatory. They submit, however, that they have met their onus to justify the provision as a bona fide occupational requirement (“BFOR”) under s. 24(2) and that therefore there is no violation of the Code. The respondents’ justification focuses upon the risk of cardiac events, including heart attacks, which increases dramatically with age. This risk is considerably higher for firefighters engaged in fire suppression, in particular while on duty. The respondents assert that the decision by the parties to the collective bargaining relationship to deal with those higher risks through a mandatory retirement provision was reasonable and that a change would constitute undue hardship.

3The Commission and complainant disagree, arguing that individual testing could demonstrate that a firefighter over the age of 60 in fact has a lower relative risk of cardiac events than the average risk in the population aged 55 to 59. They submit that requiring a 60-year-old firefighter who has a lower level of risk than the average 55 to 59 year old to retire does not comply with the Code. They argue that such individual testing could commence at age 60.

4This is not the first time that the issue of whether mandatory retirement provisions for firefighters at age 60 violate the Code has been adjudicated. In Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, the Supreme Court of Canada upheld a decision of a Board of Inquiry that found such a provision contrary to the Code, on the basis that the evidence presented to justify it was largely “impressionistic”. However, since Etobicoke, age 60 mandatory retirement provisions contained in other firefighter collective agreements have been upheld as BFORs. In Hope v. St. Catharines (City) (1986), 1986 CanLII 6542 (ON HRT), 9 C.H.R.R. D/4635, the Ontario Board of Inquiry found that the respondents had met their onus to establish a BFOR. The Supreme Court of Canada made decisions to the same effect in cases from Saskatchewan: Saskatchewan (Human Rights Commission) v. Saskatoon (City), 1989 CanLII 18 (SCC), [1989] 2 S.C.R. 1297 and Saskatchewan (Human Rights Commission) v. Moose Jaw (City), 1989 CanLII 19 (SCC), [1989] 2 S.C.R. 1317. Similarly, in Large v. Stratford (City), 1995 CanLII 73 (SCC), [1995] 3 S.C.R. 733, the Supreme Court upheld an Ontario Board of Inquiry decision that found that an age 60 mandatory retirement provision for police officers was a BFOR.

5However, the previous cases do not necessarily determine the result in this case. First, the issue of whether the respondents have successfully justified the requirement as a BFOR depends upon the evidence, in particular the expert scientific evidence, introduced in this case. Scientific research has developed since the other cases were decided. Moreover, the legal landscape has changed. Section 24(2) of the Code came into force in 1988, and provides some guidance on the considerations involved in determining whether a requirement is a BFOR. In 1999, the Supreme Court of Canada released its decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), in which it revised the legal test for establishing a BFOR by requiring evidence that the claimant could not be accommodated without experiencing undue hardship. The Commission asserts that these developments are significant.

6There is a further legislative change that, although it does not directly affect the method of analysis in this case, bears mention as part of the context. Until December 12, 2006, s. 10(1) of the Code permitted mandatory retirement at or over age 65 in all workplaces, since the definition of “age” for the purposes of s. 5(1) of the Code was limited to ages under 65. The legislation removing this restriction was passed in 2005: S.O. 2005, c. 29, s. 1(1). Thus, prior to 2006, if an age 60 mandatory retirement provision was struck down, an age 65 provision could be put in its place that would conform to the Code without the need to prove it was a BFOR. That is no longer the case.

7The parties have, helpfully, defined the issues that I must decide. Counsel for the respondents and counsel for the Commission, whose submissions were adopted by the complainant, have accepted that my analysis should consider whether mandatory retirement at age 60 is a BFOR for all fire suppression positions. In other words, the parties have agreed that the analysis should not be restricted to the duties of the District Chief position that Mr. Espey held at the time of his retirement. Moreover, the Commission and the complainant (through his adoption of Commission counsel’s submissions) accepted during oral argument that the complaint will be dismissed if the collective agreement provision is upheld; there is no issue of accommodation in a different position or otherwise.

8The Commission referred the complaint to the Tribunal on October 19, 2006. The hearing took place on December 12 and 13, 2007 and March 18, 19, 20, April 29, 30, May 1, and June 17, 2008. The Commission called Mr. Espey and Dr. Michael R. Freeman, a cardiologist, as witnesses. The City called Chief John Kobarda and Deputy Chief David Kitterman. The Association called Dr. Richard L. Hughson, a physiologist, and Dr. Gerald Wisenberg, a cardiologist. The parties also agreed upon certain facts. I will begin with a review of the evidence.

EVIDENCE

(1) Collective Agreements in London and Across the Province

9The Association represents all non-management employees in the Department. Article 17 of the collective agreement, first negotiated in the 1970s, provides as follows:

ARTICLE 17 – PENSIONS AND RETIREMENT

17.00 Each employee shall be entitled to the benefits and privileges of the Ontario Municipal Employees’ Retirement System and the Canada Pension Plan. The mandatory retirement age for members of the Fire Department, excluding Communication Operators, is 60 years of age.

17.01 The Employer will purchase and provide all employees, excluding Communication Operators, with a Type I Past Service only OMERS Supplementary Benefit Plan with a two per cent (2%) formula – normal retirement age of 60 years with total cost paid by the Employer – and with the CPP being integrated at 65 years of age – the same to be effective and provided as of January 1, 1980.

17.02 Subject to the provisions of the Municipal Act, the Ontario Municipal Employees Retirement Systems Act and the regulations thereunder, the parties agree that the pensions applicable to the Communication Operators shall be in accordance with the By-law of the Corporation of the City of London providing for basic pensions for the employees of local Boards of the said Corporation and By-laws A-4125-536 and attached agreement and A-4440-256 and attached agreement.

That effective 1 JAN 83 the employer shall provide OMERS Type I and OMERS 90 Plan to provide an unreduced early retirement benefit for Communication Operators.

Ontario Municipal Employee Retirement System pensionable earnings will be based on regular or base earnings only.

17.03 Effective July 1, 1996, employee pension groups shall be defined as comprising a “Fire Fighting” group and a “Non-Fire Fighting” group. The firefighting group shall be defined as an OMERS Type I Normal Retirement Age 60 (NRA 60) plan. Participating in this plan shall be all employees of the Fire Fighting and Training Divisions, and those employees not employed in the Fire Fighting division who participated in the OMERS Type I NRA 60 plan prior to July 1, 1996 and who continue to be employed in the Fire Department.

The Non-Fire Fighting group shall be defined as OMERS Type I NRA 65. All employees hired after July 1, 1996 except those working in the Fire Fighting and Training Divisions shall participate in the Non-Fire Fighting pension group, as shall those employees who did not participate in the OMERS Type I NRA 60 pension prior to July 1, 1996.

10The NRA 60 (“normal retirement age”) pension plan negotiated by the parties permits a firefighter to obtain an unreduced pension when retiring at age 60. It is accepted that the premiums for this plan, fully paid for by the employer, are higher than for an NRA 65 plan.

11Most firefighter collective agreements in Ontario provide for mandatory retirement at age 60, while a small number provide for mandatory retirement at age 65. Notably, under the collective agreement in Toronto, the mandatory retirement age for firefighters in the suppression division has been 65 since it was negotiated into the collective agreement in January of 2004. The normal retirement age of 60 for pension purposes continues to apply, permitting an unreduced pension if a Toronto firefighter retires at age 60.

12In Hamilton, where there is a mandatory retirement age of 60, the employer has permitted three firefighters – a first class firefighter, a district chief and a captain -- to work past the age of 60. The first class firefighter (who had retired then resumed work) was required to undergo fitness testing, while the other two were not. They also did not receive medical tests. The Hamilton Professional Fire Fighters Association has filed grievances contesting the return of these individuals to active duty.

(2) Firefighting

13Work as a suppression firefighter is physically and mentally taxing, and the actions of firefighters affect the safety of their colleagues and the public. Firefighters in London work twenty-four hour shifts, and must respond to each alarm swiftly, sometimes after being awakened from sleep not knowing whether it is a genuine emergency or false alarm. Firefighters may attend various calls, including fires, hazardous materials incidents, motor vehicle accidents, and water rescues. All of them require split-second reactions and decision making. The consequences of error for public safety and the lives of colleagues may be huge.

14The department has no form of generalized occupational or medical testing for firefighters. There may be occasions where an employee is tested for suitability to return to work following injury or illness, but otherwise firefighters need not meet any defined physical requirements.

15The fire department operates under a paramilitary system. The Chief and two Deputy Chiefs are excluded from the bargaining unit. Suppression firefighters are assigned to one of four platoons, each of which works a specific shift schedule. Within a platoon, there is one District Chief (“DC”) and one Platoon Chief (“PC”). The PC, who outranks the DC, covers first response on the west side of the city and the DC covers first response on the east side of the city.

16Below the DC in the hierarchy are captains. Under captains are fifth class to first class firefighters. Each captain is the supervisor of a particular vehicle, to which two to three fifth to first class firefighters are assigned. In London there are thirteen pumps or engines, three aerial trucks, and two rescue units which operate out of thirteen fire stations spread across the city. There are also cars for the Platoon Chief and District Chief, each of which also has a driver assigned to it. Progressing to higher ranks requires training and examinations. Qualified firefighters move to Senior Qualified Firefighter (SQF), Captain, DC, and PC on the basis of seniority. There are also specialized teams for water and ice rescue, hazardous materials, and technical rescue.

17Based upon the nature of the emergency, a dispatcher will send either a single pump, or multiple units. In a general alarm, for example, three engine companies, an aerial or ladder truck, a rescue unit and the chief’s car all attend at the scene. Firefighters are alerted by a light and tone in the station, and speed is of the essence. On average, a truck is expected to “roll” within one minute of the alarm. The goal is for the closest engine company to arrive at the scene within four minutes of leaving the station. Firefighters may be taken away from other duties or roused from sleep by an alarm.

18Deputy Chief Kitterman explained the “incident command” system, which is used in London, throughout North America, and elsewhere. Under this system, one person – the senior officer at a scene – assumes command and coordinates the response to an incident. In a small incident, or in a larger incident before the arrival of the DC or PC, this is a captain. In a larger incident, it will generally be the DC or PC, once he or she arrives. It is important that there be a coordinated approach, with the decisions made by one person, and that there not be “freelancing” by individual firefighters or officers at a fire scene.

19The incident commander determines, in accordance with standard procedures, how the fire will be attacked. He or she stays back, usually at the corner of a building, in order to observe the scene, and is in communication with others at the scene by radio. General orders are given to officers, generally captains, who give specific directions to the firefighters they supervise, referred to as “task workers”. Information and observations by task workers are communicated by radio, as are orders and requests from the incident commander or other officers.

20From the moment he or she is called, the DC or PC monitors information about the incident by radio. Generally, a captain arrives first and assumes incident command (because the DC or PC often must travel further), but while being driven to the scene, the DC or PC is obtaining information and planning strategy. Once the DC or PC arrives on scene, he or she has a face-to-face meeting with the incident commander, and then advises by radio that he or she has assumed command. The driver then takes notes for the DC or PC, as the incident commander does not have time to do so.

21Unlike other firefighters, a DC or PC will rarely, if ever, have to engage in physical work such as operating hoses, climbing ladders, wearing bunker gear, mask and self-contained breathing apparatus (“SCBA”), moving people, and carrying heavy equipment. The physical and mental stresses for these officers come from the need to respond quickly from a state of rest, and process information and make split-second decisions in unpredictable situations, sometimes with a lack of sleep.

22If the incident commander becomes incapacitated, the procedure is that an evacuation tone is sounded and everyone is withdrawn. The next senior officer will take command and firefighting will resume. This results in delay and the need to regroup.

(3) Mr. Espey’s Career and Retirement

23Mr. Espey stated working for the City of London as a fifth-class firefighter in September of 1972. Previously, he worked for the Canadian Armed Forces fire service and for a lumber company. He became a first-class firefighter in 1976, a captain in 1995, and a district chief in 2002 or 2003. Mr. Espey acknowledged that his promotions likely occurred as a result of others retiring at age 60.

24Mr. Espey turned 60 in September of 2004, and therefore was required to retire at the end of the month, on September 30, 2004. As of his retirement, Mr. Espey had 32 years of credited service, rather than the maximum 35 years allowed. A pension estimate he received from OMERS indicated a difference of about $7,000 per year in his pension if he worked until age 65.

25In 2000, Mr. Espey decided that he wanted to consider continuing to work past age 60. In 2002, he approached the then human rights officer with the city. She asked him about the physical requirements of the job and he said that there were none “other than breathing”. Mr. Espey testified that she told him that her interpretation of the Code was that mandatory age 60 retirement was not permitted. He said that he received the same advice from the person who replaced her when she left her job.

26Mr. Espey did not decide whether he would seek an extension to his retirement date or approach the employer to request one until August 2004. He testified that he was told by someone at the Commission that it was his right to request an extension when he wanted one. On August 18, 2004 Mr. Espey sent the following e-mail to the Chief:

The Federal legislation requiring age 60 mandated retirement for emergency services personnel, has been deemed discriminatory and is no longer a mandatory requirement. Agents of the Ontario Human Rights Commission and the City of London Human Rights Specialist have stated that mandatory age 60 retirement is age discriminating. The Federal Human Rights Commission has requested all levels of government to desist from age 60 mandatory retirement requirements.

On September 13, 2004 I will be 60 years of age. Forced retirement at this time will not only be age discriminating but also have a punitive financial affect [sic] since I will not have the maximum 35 years of service required for full pension (70%) benefits. Consequently, I am requesting an extension on my retirement date from September 30, 2004 to August 31, 2007.

Submitted for your approval this 18th day of August 2004.

Following consultations with others within the City of London, the chief denied Mr. Espey’s request by letter dated September 30, 2004, the date he was required to retire.

27Mr. Espey did not advise the Association of his request, ask for its assistance, or seek to file a grievance with regard to this matter. In fact, in an e-mail dated September 3, 2004 to the City’s human rights officer, he objected to the fact that the Chief had copied an e-mail regarding this request to the Association “who, to date, have not been cognizant of the extension request”. Mr. Espey did not involve the Association because he was aware that it supported mandatory retirement and did not support extension of retirement dates.

28Mr. Espey testified that having received the letter denying his request to extend his retirement date, he felt depressed. He felt that he had been abandoned and hung out to dry. He felt that the timing was “orchestrated by management and the union” and he was “very despondent”. He was sure that his rights were being violated and that a wrong had been committed by the City that the Association executive had allowed. Mr. Espey also did not approach the Association following the receipt of Chief Kobarda’s letter to ask for support or for a grievance to be filed. He felt that given that it had been “adamant against any extensions there was no value to get them on side”. He testified that asking for such assistance would be “like asking Lucifer to get me through the pearly gates”.

29Several years after Mr. Espey was dismissed, but prior to the start of the hearing, the City made Mr. Espey an offer of alternative employment as a Fire Prevention Inspector. The offer was first made as part of settlement discussions on December 18, 2006, and then unconditionally by letter dated March 27, 2007. Mr. Espey did not accept this offer. He stated that it would have taken five years of retraining, and would have required him to travel outside the city to take courses in Gravenhurst. He said that Fire Prevention Inspectors are perceived as the lowest position in the firefighting division, and noted that he would have received a reduction in wage. The wage would have increased over five years to 115% of the rate of a first class firefighter, the same as a captain. The Chief testified that in his view, the position is highly regarded by management and rank and file members, and that since 2003, a fire inspector has earned 115% of a first class firefighter’s rate.

30Following his mandatory retirement, Mr. Espey did not look for other work. The respondents, however, called no evidence about available work. As of the end of the hearing, Mr. Espey had not applied for his pension or the payout of his sick leave gratuity to which he was entitled. On July 16, 2008, Mr. Espey applied for and was paid OMERS pension benefits, retroactive to October 1, 2004, and is now receiving monthly benefits. He also applied for and received his sick leave gratuity.

(4) The Expert Evidence

(a) Coronary Artery Disease

31Before reviewing the expert evidence in detail, I will outline some of the basic uncontroversial information regarding coronary artery disease and its possible medical consequences: angina, heart attacks, strokes, and ruptured aortic aneurysm. For ease of reference, I will refer to these collectively as “cardiac events”.

32Coronary arteries are the vessels that supply blood and all its nutrients to the heart muscle. Coronary artery disease refers to atherosclerosis – a build-up of plaque – within the coronary arteries. Plaque is the hardened accumulation, within the wall of the artery, of materials including fat, calcium and inflammatory cells.

33Coronary artery disease may result in stenosis, the narrowing of the blood-containing channel within the arteries. Stenosis may give rise to angina, which is chest pain or discomfort that occurs when the heart does not get enough blood. This symptom is often provoked by physical activity or emotional stress. Angina attacks cause pain and discomfort, and a person experiencing an angina attack is at an increased risk of experiencing a full-blown heart attack.

34A heart attack occurs when one of the three main coronary arteries or a branch thereof suddenly becomes blocked and the blood supply to an area of the heart is interrupted. Heart attacks are caused when plaque suddenly ruptures. The material contained within the plaque may then stimulate a blood clot to form at the site rupture, which may obstruct the blood supply through the artery. A heart attack requires prompt medical assessment and intervention, with risk of death, and a firefighter experiencing a heart attack usually cannot continue his or her duties due to chest discomfort.

35A stroke refers to a loss of brain function due to a disturbance in the blood vessels supplying the brain. Short-term stroke symptoms typically develop suddenly and include weakness or paralysis of an arm, leg, or both, trouble speaking, vision problems, severe headache, and dizziness. There are various causes of strokes, which include the formation of a blood clot forming around atherosclerotic plaques in the arteries serving the brain or a blood clot travelling from elsewhere in the body and disrupting blood flow to the brain. Transient ischemic attacks have similar causes and short-term effects to strokes, but typically last from two to 30 minutes and do not cause permanent damage.

36Ruptured abdominal aortic aneurysms are less common than strokes and heart attacks. An aneurysm is a weakened area in the wall of a blood vessel that fills with blood and bulges, usually as a result of atherosclerosis, which leads to bleeding in the affected area. The aorta is the largest blood vessel in the body. The immediate effects of a ruptured abdominal aortic aneurysm include severe abdominal pain and massive internal haemorrhaging. The risk of immediate death is very high.

37Risk factors for heart disease include age, being male, family history, tobacco smoking, physical inactivity, diabetes, high cholesterol and obesity. Age is particularly significant among these factors, as described in further detail below. The incidence of heart disease increases steadily with age. This is mainly because plaque develops over time. Advanced age is also one of the most significant risk factors for a stroke, together with high blood pressure, atrial fibrillation (a heart rhythm abnormality), excessive alcohol consumption and the risk factors for atherosclerosis. Similarly, the risk of a ruptured abdominal aortic aneurysm increases with age. For example, the actual risk of death of a cardiac event for a 60-69 year old man in the general population is about 1 in 180. This is approximately three times the level of risk for men age 50-59.

(b) Firefighters, Aging, and Coronary Artery Disease

38Dr. Richard Hughson was called as an expert witness by the Association, and also provided a written report. His evidence focused on the physical demands of firefighting and the literature on coronary artery disease among firefighters, including both task workers and officers.

39Dr. Hughson has a Ph.D. in Medical Science and an M.Sc. in Physiology. He currently holds a university research chair in the Department of Kinesiology at the University of Waterloo, where he teaches undergraduate courses in occupational and environmental physiology and a graduate course in cardiovascular and respiratory physiology in health and disease. Dr. Hughson is head of the University of Waterloo’s Cardiorespiratory and Vascular Dynamics Lab (“CVD lab”). The CVD lab has a particular focus on the cardiorespiratory and vascular responses of firefighters, and is involved in implementing a candidate screening tool for firefighters and examining energy demands and air use while breathing through the SCBA during typical firefighting tasks. He is also the Director of the Vascular Aging Program in the Schlegel/University of Waterloo’s research Institute on Aging (“RIA”). The RIA is focused on many aspects of aging, including the way in which functional abilities change with age.

40The issues in this case focus upon cardiac disease. Dr. Hughson summarizes his conclusions on the risk from cardiac disease among firefighters and the effect of age as follows:

While the results of these studies vary, I believe that the literature may fairly be summarized as follows: the prevalence of cardiovascular disease/mortality, as well as the age-effect on cardiovascular disease, is at least as evident in firefighters as in the general population, and may even be more pronounced in firefighters than in the general population.

41Dr. Hughson emphasized several reports and studies that suggest that there is a higher rate of heart disease among firefighters than among the general population. In 1994, Ontario’s Industrial Disease Standards Panel conducted a review of the literature on the topic and concluded as follows:

There is evidence, although not consistent evidence, of an association between firefighting and heart disease. In those powerful studies which identify an excess, the Panel makes the following finding: A probable connection exists between cardiovascular disease and the occupation of firefighting.

The same report found a “probable connection” between firefighting and ruptured aortic aneurysm.

42Data in a report prepared in 2002 for the United States Federal Emergency Management Agency (“FEMA”) show that cardiovascular disease is the leading cause of on-duty deaths among firefighters in the US, accounting for 44% of all such deaths. This exceeds the death rate attributable to other occupational hazards such as burns, asphyxiation and trauma. The report concluded that “[f]irefighters, as a group, are more likely than other American workers to die of a heart attack while on duty”. Officers, who are often engaged in incident command, are overrepresented among firefighters who have died on the job from heart disease. The percentage of on-duty deaths among firefighters due to cardiovascular disease (44%) is considerably higher than it is among other occupational groups, including guards (25%), police (22%), construction trades (13%) and construction labourers (10%). The FEMA report also concluded that firefighters over the age of 50 comprise 16 percent of firefighters, but account for one-third of on-duty deaths.

43Dr. Hughson also testified about an article published in March 2007 which analyzed FEMA data and found significantly higher risk of firefighter deaths from coronary heart disease during various emergency duties: Kales et. al., “Emergency Duties and Deaths from Heart Disease among Firefighters in the United States” (2007) 356 New England Journal of Medicine 1207. The abstract to the article summarizes the results and conclusions of the study as follows:

RESULTS

Deaths from coronary heart disease were associated with suppressing a fire (32.1% of all such deaths), responding to an alarm (13.4%), returning from an alarm (17.4%), engaging in physical training (12.5%), responding to nonfire emergencies (9.4%), and performing nonemergency duties (15.4%). As compared with the odds of death from coronary heart disease during nonemergency duties, the odds were 12.1 to 136 times as high during fire suppression, 2.8 to 14.1 times as high during alarm response, 2.2 to 10.5 times as high during alarm return, and 2.9 to 6.6 times as high during physical training. These odds were based on three estimates of the time that firefighters spend on their duties.

CONCLUSIONS

Certain emergency firefighting duties were associated with a risk of death that was markedly higher than the risk associated with nonemergency duties. Fire suppression was associated with the highest risk, which was approximately 10 to 100 times as high as for nonemergency duties.

44Dr. Hughson states that the relatively high rate of on-duty cardiovascular deaths among firefighters is most likely attributable to the physical and psychological stresses of firefighting. Stresses associated with firefighting, including those affecting incident commanders, tend to increase the oxygen demands of the heart by increasing heart rate and blood pressure, which can trigger a heart attack, stroke, or ruptured aneurysm in an individual with atherosclerosis. Studies have shown that firefighters’ heart rates tend to increase upon hearing an alarm, and that even higher rates have been observed during active suppression duties. During active suppression, high energy output, psychological stress, air pollutants, high temperatures and the difficulty of cooling the body as a result of protective gear likely increase heart rate. Muscle activity raises blood pressure.

45Dr. Hughson cited several factors that may help explain the higher rate of on-duty cardiovascular deaths in older firefighters. He notes that older firefighters are less likely to be able to sustain high heart rates, are more likely to have high blood pressure, and are more likely to have cardiovascular disease. He also referred to studies that suggest that the psychological stress of firefighting is greater in older firefighters. Even at rest, firefighters, especially those with over 20 years’ service, have been found to have significantly elevated blood concentrations of norepinephrine and epinephrine reflecting the chronic activation of the sympathetic nervous system. These factors apply to both those carrying out tasks and working as incident commanders.

46Finally, Dr. Hughson testified about existing occupational testing of firefighters. Tests currently in use can detect whether an individual has the fitness and physical capacity to do the work of a firefighter. They do not reliably detect the presence of cardiovascular disease or the likelihood of a cardiac event. These physical tests themselves, he testified, expose firefighters to the risk of cardiac events.

(c) Dr. Gerald Wisenberg and Dr. Michael Freeman: Cardiologists

47The written reports and evidence of Drs. Wisenberg and Freeman focused upon whether and how the risk of a particular firefighter having a cardiac event could be evaluated, and how such an evaluation of risk would compare to merely using age. Dr. Wisenberg was called as a witness by the Association, and Dr. Freeman by the Commission. Both are highly qualified experts in cardiology. Dr. Wisenberg’s report concluded that none of the existing screening tests were designed to be used as an occupational screening tool for the presence of disease or an individual’s risk of a medical emergency. Dr. Freeman’s view is that a risk assessment could be conducted using an assessment of risk factors, supplemented by treadmill exercise testing, a calcium score, or a myocardial perfusion test. This could show that a particular individual over age 60 is at a lower risk than the average 55 to 59 year old.

48Dr. Wisenberg is a cardiologist at London Health Sciences Centre and a Professor of Medicine, Diagnostic Radiology and Nuclear Medicine and Medical Biophysics at the University of Western Ontario. He has a medical degree and specialist certificates in Internal Medicine and Cardiology. He has been involved in research projects funded by the Heart and Stroke Foundation of Ontario and the Medical Research Council of Canada. He has many academic publications, and has received various awards and fellowships.

49Dr. Freeman is the Medical Director of the Heart and Vascular Program and the Director of Nuclear Cardiology at St. Michael’s Hospital in Toronto. He is an Associate Professor of Medicine in the Faculty of Medicine at the University of Toronto. He has a medical degree and specialist certificates in Internal Medicine and Cardiology. He has been involved in a variety of research studies and has received funding from the Heart and Stroke Foundation. He is director of a Nuclear Cardiology Research Laboratory, which performs special non-invasive testing of heart function and blood flow. He is on the board of the American Society of Nuclear Cardiology. His main clinical interest is evaluating the cardiac risk of patients with known or suspected coronary artery disease. He has been a subject-matter expert for the federal Ministry of Transport for evaluation of pilots for suitability to continue flying, and previously evaluated the cardiac risk of pilots for Canadian Airlines and Air Canada.

50On most points, there was little disagreement between the experts. Dr. Freeman, who reviewed the reports of Drs. Hughson and Wisenberg before preparing his own, opined that they are “well written, contain excellent documentation of their opinions, and are largely consistent with my interpretation of the literature”.

51Contrary to what might be expected, most heart attacks are caused by the rupture of “immature” plaque that has led to only minimal narrowing of arteries. This is important for the issue of testing because, as explained below, it is easier for tests to pick up larger narrowings. Moreover, the degree of narrowing that may be picked up in a test does not correspond with the likelihood of a cardiac event.

52Dr. Wisenberg explained that immature plaque is more likely to lead to heart attacks for two reasons. First, immature plaque is more vulnerable to rupture because it has only a thin protective cover. Mature plaque has a thick, calcified cover. In addition, consequences of the rupture tend to be more severe with immature plaque. As plaque matures, passages known as “collaterals” are formed. Collaterals allow the blood to pass from areas of low blood flow to high blood flow, albeit at a diminished rate. At the same time, the heart muscle adjusts to the diminished blood flow. Dr. Wisenberg cited statistics that 68% of heart attacks occur where the degree of stenosis (narrowing of the arteries) is less than 50%, 18% occur in situations of 50-70% stenosis, and 14% of heart attacks occur where the degree of stenosis exceeds 70%.

53Dr. Freeman noted that there is an alternate view in the scientific community that suggests that this hypothesis remains unproven and that most lesions that result in heart attacks are large and bulky and that larger lesions are more likely to break. However, this is not the prevalent view today. Dr. Freeman testified, however, that most patients with minor narrowings also have more severe ones.

54There was considerable evidence in the reports about common tests used in treating patients with heart disease and their potential use to screen firefighters for risk of a cardiac event. There was general agreement between the experts that some of these methods are not useful in measuring the risk of a cardiac event in a particular firefighter. Accordingly, I will focus on the methods proposed by Dr. Freeman, the Commission’s expert, which the Commission argued could measure relative risk.

(d) The Proposed Risk Assessment

55Dr. Freeman stated that a form of testing similar to that used for airline pilots could be used to determine the risk of a firefighter experiencing a cardiac event. This would involve an assessment of the individual’s risk based upon standard measures, supplemented by further exercise or CT scan testing.

56The first stage in the proposed approach is an assessment of risk using the model set out in Grundy et al., “Assessment of Cardiovascular Risk by Use of Multiple-Risk-Factor Assessment Equations: A Statement for Healthcare Professionals From the American Heart Association and the American College of Cardiology” (1999) 34 Journal of the American College of Cardiology 1348. This is a scientific statement issued by these organizations which, although published in 1999, according to Dr. Freeman still has utility today. Its purpose is set out in the first paragraph as follows:

The American Heart Association (AHA) and the American College of Cardiology (ACC) have published joint recommendations for medical intervention in patients with CHD [coronary heart disease] and other forms of atherosclerotic disease. A similar potential exists for risk reduction in patients without established CHD (primary prevention). However, the risk status of persons without CHD varies greatly, and this variability mandates a range in the intensity of interventions. Effective primary prevention thus requires an assessment of risk to categorize patients for selection of appropriate interventions. The present statement is being published jointly by the AHA and ACC to outline current issues and approaches to global risk assessment for primary prevention….

57The statement uses data from the “Framingham study” that followed subjects in Framingham, Massachusetts over many years to calculate the effect of various risk factors for coronary heart disease. To determine risk, scores are assigned based upon an individual’s age, total cholesterol, HDL cholesterol, systolic blood pressure, diabetes, and smoking status. Using charts, the individual’s score can be used to calculate his or her absolute risk of coronary heart disease and risk as compared with others of the same age and gender.

58Dr. Freeman states that further assessment could be done using “treadmill exercise testing, CAC scoring, and/or exercise myocardial perfusion imaging” to “more accurately determine risk”, in particular risk as compared with the risk of an average person in the 55-59 age group.

59Treadmill exercise testing refers to a stress electrocardiogram, which is non-invasive testing that takes about half an hour to complete. It is widely available in Ontario. Stress myocardial perfusion imaging assesses blood flow distribution to the heart. It takes about 5-6 hours and involves the administration of radioactive materials through an intravenous line.

60Calcium scoring is assessment of coronary artery calcium using a 64-slice CT scanner or electron beam computer tomography. According to Dr. Freeman, the majority of hospitals in Ontario have such scanners, although Ontario health insurance will not cover the cost of this test. The cost is less than $250. Literature has established its value in evaluating risk (Shaw et al., “Prognostic Value of Cardiac Risk Factors and Coronary Artery Calcium Screening for All-Cause Mortality” (2003) 228 Radiology 826). An article that was published in the New England Journal of Medicine in March of 2008 (Detrano et al., “Coronary Calcium as a Predictor of Coronary Events in Four Racial or Ethnic Groups” (2008) 358 New England Journal of Medicine 1336) concluded that “the coronary calcium score is a strong predictor of incident coronary heart disease and provides predictive information beyond that provided by standard risk factors in four major racial and ethnic groups in the United States”. It outlines that Framingham scores may be combined with calcium scores to provide a more accurate assessment of risk.

61In cross-examination, Dr. Freeman acknowledged that he has no expertise on firefighters. He agreed that the scoring methods he described have not been used as occupational screening, and that they would not take into account risks flowing from the nature of an individual’s occupation. He also agreed that other risk factors will affect for what period after the test it will be useful in assessing risk.

62In his evidence, Dr. Wisenberg stated that the AHA and ACC statement was based upon the knowledge available in 1999, which has changed considerably. He emphasized that many of the factors relied upon by Dr. Freeman were designed for use by primary care physicians to identify risk factors and encourage individuals at risk to modify them. They are only designed to define risk based upon modifiable risk factors and, for example, do not include family history. Imaging techniques are focused on symptomatic patients in order to determine their treatment and are not designed for risk management.

63In Dr. Wisenberg’s view, while the types of testing identified by Dr. Freeman may help determine risk of patients relative to each other, age remains the best indicator of risk in the population in general, unless a patient has a calcium score of zero, indicating no coronary artery calcium on a CT scan.

ANALYSIS

(1) The Legal Framework

64The relevant provisions of the Code read as follows:

5. 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 disability.

6. (1) The right under section 5 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;

(2) No tribunal or court shall find that a qualification under clause (1) (b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

65The parties agree that there is discrimination within the meaning of s. 5. The issue I must determine is whether the respondents have met their onus to prove that age is a reasonable and bona fide qualification in these circumstances.

66In order to establish a justification under this section, the respondents must prove:

• that mandatory retirement at age 60 for suppression firefighters was adopted for a purpose or goal that was rationally connected to the performance of the job;

• that this requirement was adopted in an honest and good faith belief that it was necessary to the fulfilment of that purpose; and

• that this requirement is reasonably necessary to accomplish this purpose. To do so, they must show that individual employees over 60 cannot be accommodated without undue hardship.

See Meiorin, supra at para. 54 and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 at para. 20 (“Grismer”). In Entrop v. Imperial Oil (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 at paras. 77-85, the Ontario Court of Appeal found that the Meiorin/Grismer approach, developed by the Supreme Court in cases from British Columbia, also applies in Ontario.

67This framework for determining whether a respondent has demonstrated a BFOR was set out in the Supreme Court’s decision in Meiorin. Prior to Meiorin, the analysis of whether discrimination was justified depended on whether it was classified as direct or indirect discrimination. In Meiorin, the Supreme Court explained the former framework of analysis as follows, at paras. 20-21:

In the case of direct discrimination, the employer may establish that the standard is a BFOR by showing: (1) that the standard was imposed honestly and in good faith and was not designed to undermine the objectives of the human rights legislation (the subjective element); and (2) that the standard is reasonably necessary to the safe and efficient performance of the work and does not place an unreasonable burden on those to whom it applies (the objective element)… It is difficult for an employer to justify a standard as a BFOR where individual testing of the capabilities of the employee or applicant is a reasonable alternative…

If these criteria are established, the standard is justified as a BFOR. If they are not, the standard itself is struck down…

A different analysis applies to adverse effect discrimination. The BFOR defence does not apply. Prima facie discrimination established, the employer need only show: (1) that there is a rational connection between the job and the particular standard, and (2) that it cannot further accommodate the claimant without incurring undue hardship… If the employer cannot discharge this burden, then it has failed to establish a defence to the charge of discrimination. In such a case, the claimant succeeds, but the standard itself always remains intact.

[citations omitted]

68The previous cases that upheld age 60 mandatory retirement for police and firefighters were decided under the old framework, as cases involving direct discrimination. The applicable legal test, therefore, did not include consideration of whether individuals over the age of 60 could be accommodated to the point of undue hardship, as the third stage of the Meiorin analysis requires. Indeed, in Large, the majority of the Supreme Court’s decision to overturn the decision of the Ontario Board of Inquiry relied upon the finding that the Board had improperly incorporated a discussion of individual accommodation into the BFOR analysis: see paras. 30-37. This approach would almost certainly be different following Meiorin. The Commission argues that because the undue hardship analysis was not part of these decisions, “they are of very limited assistance in determining the outcome of this case”.

69Yet as the respondents correctly point out, the pre-Meiorin cases often included consideration of whether individual testing or assessment was feasible. As the Supreme Court said in Meiorin:

The conventional analysis developed by this Court has also been criticized for drawing difficult distinctions between the elements an employer must establish to rebut a prima facie case of direct discrimination and the elements an employer must establish to rebut a prima facie case of adverse effect discrimination. For example, a distinction has been drawn between the obligation to explore “reasonable alternatives”, applicable to direct discrimination, and the obligation to consider “individual accommodation”, applicable to adverse effect discrimination: see Large, supra, at paras. 30-34, per Sopinka J.

In practice, however, there may be little difference between the two defences… In Thwaites v. Canada (Armed Forces) (1993), 1993 CanLII 342 (CHRT), 19 C.H.R.R. D/259 (Can. H.R.T.), it was recognized, at p. D/282, that

[t]he logical conclusion from this analysis is that there is very little, if any, meaningful distinction between what an employer must establish by way of a defence to an allegation of direct discrimination and a defence to an allegation of adverse effect discrimination. The only difference may be semantic. In both cases, the employer must have regard to the particular individual in question. In the case of direct discrimination, the employer must justify its rule or practice by demonstrating that there are no reasonable alternatives and that the rule or practice is proportional to the end being sought. In the case of adverse effect discrimination, the neutral rule is not attacked but the employer must still show that it could not otherwise reasonably accommodate the individual disparately affected by that rule. In both cases, whether the operative words are “reasonable alternative” or “proportionality” or “accommodation”, the inquiry is essentially the same: the employer must show that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.

[citations omitted]

70In Saskatoon at pp. 1313-1315, the Supreme Court referred to the need to examine whether individualized testing is feasible as part of the BFOR analysis:

While it is not an absolute requirement that employees be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing. If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it.

71This case must be determined based upon the evidence that has been presented before me and the law as it currently stands. As such, the previous cases are not determinative. Human rights law has evolved in various ways since they were decided, including in the articulation of the framework of analysis. At the same time, the principles and values expressed in older cases, which relate to similar issues, are still relevant, considered in light of the evidence in this case and the current framework of analysis. As the Supreme Court of Canada stated in Meiorin at para. 62, the jurisprudence dealing with justification of direct discrimination and the duty to accommodate “may be helpful” in the new analysis.

(2) Application of the Analysis: Rational Connection and Honest and Good Faith Adoption

72I turn now to the application of the three stages of analysis in the circumstances of this case. There is no question that the respondents have met their onus to establish that the first two aspects of the test have been met. In light of the increasing risk of cardiac events with age, and the effects of a cardiac event on the work of a firefighter, it is evident that mandatory retirement is rationally connected to the work of a firefighter, to protect health and safety. It is also evident that this standard was adopted in good faith to promote the work-related purpose of protecting health and safety.

(3) Reasonable Justification and Undue Hardship

73The difficult issue in this case is whether the respondents have met their burden to demonstrate that mandatory retirement at age 60 is reasonably necessary to ensure health and safety of firefighters, and that accommodation of individual firefighters would result in undue hardship to the respondents. As the Supreme Court of Canada has emphasized, some hardship to a respondent is acceptable – the question is whether such hardship would be undue: Central Okanagan School District No. 23 v. Renaud¸ 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970.

74The analysis is contextual and depends upon the specific facts of the case. Particularly in a complex case with competing values such as this one, there is no formula or conclusive legal test that can be applied to determine whether the respondents have justified the standard. Rather, the Tribunal must carefully balance the various relevant factors in the context of the evidence. As the Supreme Court of Canada explained in Etobicoke, supra, at p. 212:

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 work place, and the effect of such conditions upon employees, particularly upon those at or near the retirement age sought to be supported.

75The need for flexibility and consideration of various factors was explained this way by the Supreme Court in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital general de Montréal, 2007 SCC 4 at para. 15: “The factors that will support a finding of undue hardship are not entrenched and must be applied with common sense and flexibility...Since the right to accommodation is not absolute, consideration of all relevant factors can lead to the conclusion that the impact of the application of a prejudicial standard is legitimate.”

76In this case, the parties’ arguments, and my analysis, focus on three main factors – the safety risks that may result from cardiac events, assessment of risk of cardiac events and the possibility of doing so on an individual basis, and the impact of the collective agreement.

(a) Safety Risks

77Suppression firefighters’ work, including that of incident commanders, is dangerous and critical for public safety. It requires speed, quick reaction, endurance, and causes physical and mental stress. As presently organized, efforts are coordinated through the incident command system in which the incident commander has responsibility for making critical decisions. If any suppression firefighter, including the incident commander, becomes incapacitated, the effectiveness of responding to an emergency is compromised, potentially affecting the safety of other firefighters and the public. A firefighter’s heart attack, angina, stroke, or ruptured aortic aneurysm will have significant effects on the ability of the fire service to deal with emergencies as required, in addition to serious consequences for the firefighter involved and his or her colleagues. A cardiac event while a firefighter is carrying out emergency duties may have disastrous health and safety consequences. I am prepared to accept, as was the Board of Inquiry in Hope, supra, at paras. 36063-36064, that the consequences of cardiac events make it reasonable for the respondents to “insist that firefighters not be in the position of having a substantial risk of a cardiac event”.

78At the same time, there can never be a guarantee that a suppression firefighter will not become incapacitated during emergency response. Particularly while doing highly dangerous work, workers can become suddenly ill or injured for many reasons, and safety risks can come from various sources, regardless of age. Human brains and bodies are not machines, and the unexpected can always happen.

79As the Supreme Court emphasized in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para. 46, it is not appropriate to impose a standard of “absolute safety”. Further, the Code is designed to ensure full participation of individuals and groups in our society, and workplaces have often been designed upon the unspoken (or spoken) assumption that workers in certain types of jobs generally fit a certain profile: for example, being male, “able-bodied”, and young. We must be careful not to simply assume that an elevated safety risk as compared with a set of other workers or the “average” worker justifies the exclusion of an individual from the workplace.

80The evidence in this case, however, is clear that age is a very significant contributor to risk of cardiac events, in general, among firefighters, and among officers. It is clear that there is a significantly increased risk of cardiac disease around the age of 60, in both men and women, and that this continues to increase with age.

81I accept Dr. Hughson’s evidence regarding a probable connection between firefighting and heart disease. I also find that the expert evidence, in particular Dr. Hughson’s description of the Kales study and the FEMA report, supports the conclusion that death from coronary heart disease is multiple times more likely while performing emergency firefighting duties than while performing non-emergency duties, even for officers involved in incident command. Firefighters of all ranks, for reasons that are as yet not fully determined, have very high risks of dying from cardiovascular disease while performing emergency duties.

82These risks have been recognized by the legislature in a related context. In 2007, s. 15.1 was added to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 26, Sched. A (“WSIA”) by the Workplace Safety and Insurance Amendment Act (Presumptions for Firefighters), 2007, S.O. 2007, c. 3. As a result of this legislation and associated regulations, O. Reg. 253/07, there is a presumption for full-time firefighters that a heart injury sustained within 24 hours of attending a fire scene or actively participating in a training exercise that involves a simulated emergency is work-related.

83The dramatic effects of age on the risk of heart disease are clear, and apply at least as strongly, if not more strongly, to firefighters. Accordingly, I find that advancing age contributes significantly to the risk of a cardiac event in firefighters. The increased risk of cardiac events while firefighters are responding to an emergency is particularly high. The safety consequences of such an event for an on-duty firefighter, the public and his or her colleagues may be grave. The combination of a high risk and serious consequences are an important factor in my analysis.

(b) Individualized Testing

84In Meiorin, the Court emphasized that in the undue hardship analysis, careful consideration must be given to the possibility of individual testing and accommodation in place of the general application of a prima facie discriminatory standard. Justice McLachlin (as she then was), wrote as follows, at paras. 64-68:

Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. Apart from individual testing to determine whether the person has the aptitude or qualification that is necessary to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer’s legitimate work-related purpose should be considered in appropriate cases. The skills, capabilities and potential contributions of the individual claimant and others like him or her must be respected as much as possible. Employers, courts and tribunals should be innovative yet practical when considering how this may best be done in particular circumstances.

Some of the important questions that may be asked in the course of the analysis include:

(a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?

(b) If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?

(c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?

(d) Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?

(e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?

(f) Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? As Sopinka J. noted in Renaud, supra, at pp. 992-96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.

Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. Courts and tribunals must bear this in mind when confronted with a claim of employment-related discrimination. To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible. A standard that allows for such accommodation may be only slightly different from the existing standard but it is a different standard nonetheless.

85The Commission argues that these principles mean that the system must be designed so that if a firefighter over age 60 can demonstrate, through testing methods such as those proposed by Dr. Freeman that he or she has a lower risk than the average risk of those age 55-59, he or she must be accommodated by not being required to retire. It accepts that testing may validly start at age 60.

86I will address first the factual issues around individual testing. I accept Dr. Freeman’s evidence that in the population in general, the use of the Framingham analysis together with calcium scoring or myocardial perfusion imaging can yield a more accurate determination of individual risk than age alone. The evidence in this case, including the Detrano study that was published in March, shows that science is rapidly developing more accurate tools to pinpoint those individuals at a higher risk of heart disease, and that CAC testing in particular may assist in this.

87However, the evidence was that the medical community has not determined how this data applies to firefighters, who have an extremely high on-the-job incidence of cardiac events relative to other occupations. This risk is evidently influenced by factors different from those in the general population. It is not known whether risk assessments about the population as a whole apply to firefighters, as Dr. Freeman acknowledged in cross-examination. I therefore conclude that it has been shown on a balance of probabilities that there is no individual testing method that would allow a better risk assessment of on-the-job events for firefighters more accurately than age, given their occupation-related risks of heart disease.

88As Dr. Freeman also acknowledged, these tests have not been used or studied as occupational screening in asymptomatic individuals, and it was not clear how they would be used on an ongoing basis to evaluate such risk. Even in the general population, science is developing accurate methods to determine risk in asymptomatic individuals, and I find that it has been shown that there is not currently an individualized risk analysis of firefighters that is more accurate than using age alone.

89I also note that risk assessment involves assessing the chances of an event that might never happen, based upon statistics gathered by aggregating the experiences of individuals with particular characteristics. It is an educated guess, using a choice of factors based upon scientific research, about who has a higher susceptibility to cardiac events. It cannot be determined which individuals will in fact suffer cardiac events. The use of risk analysis is therefore somewhat different from adapting workplace requirements to known characteristics of individuals.

90Different methods of risk analysis may have particular advantages and disadvantages from the standpoint of human rights values. There are, for example, potential human rights consequences to a system in which every firefighter, of any age, is analyzed on an individual basis using the methods proposed by Dr. Freeman. A firefighter forced to retire under age 60 because of a high level of risk could argue discrimination based upon disability or perceived disability.

91Even if reliable evidence that individual testing is possible had been presented, in my view this would not necessarily be determinative of the issues in this case. The analysis, as the Supreme Court emphasized in its decision in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 12, is not whether individual risk analysis is impossible, but rather whether there is proof of undue hardship, “which can take as many forms as there are circumstances”.

(c) The Decision of the Workplace Parties

92I also give significant weight to the fact that this method of dealing with the risks to firefighters and the public from cardiac disease was negotiated and continues to be supported by the Association, the representative of the firefighters in the Department. In a situation in which some method of assessing risk is necessary, employees’ elected representatives and the employer have agreed upon a system that will affect all firefighters at the same stage in their lives, and have negotiated ways to minimize the impact through the provision of a full unreduced pension at age 60. There are strong reasons not to disturb the system that the parties have put in place to address the health and safety concerns that exist.

93The fact that a provision has been agreed to in collective bargaining is a relevant and important factor to be taken into account in the analysis: see McGill, supra at para. 27. In Dickason v. University of Alberta, 1992 CanLII 30 (SCC), [1992] 2 S.C.R. 1103, at paras. 26-41, the majority of the Supreme Court held that, in light of that fact that negotiated mandatory retirement provisions will eventually affect all members of the bargaining unit, there is less reason to be concerned about such provisions than negotiated provisions which affect a minority:

Generally speaking, parties may not contract out of a human rights statute. This Court has enforced that general rule in the context of age discrimination; see Etobicoke, supra, and Winnipeg School Division No. 1 v. Craton, 1985 CanLII 48 (SCC), [1985] 2 S.C.R. 150. Yet this Court has accepted the existence of a collective bargaining agreement as a factor to be taken into consideration in a s. 1 analysis. See McKinney, per La Forest J. at p. 287 and Cory J. at pp. 447-48. The Craton rule resulted from the concern that there may be a great discrepancy in bargaining power between the person contracting out of human rights legislation and the party receiving the benefit of that term. Unequal bargaining power may be utilized to force a party to agree to a contract which undermines the very purpose of human rights legislation. That type of imbalance may typically arise in an employment relationship.

Yet labour codes, providing for the formation of unions and collective bargaining, are specifically designed to overcome or compensate any imbalance in bargaining power. With these statutory safeguards in place collective agreements take on a new and important significance. They can represent a carefully constructed, fairly negotiated bargain between employer and employees. It follows that a collective agreement cannot be readily dismissed from consideration.

There remains a danger with collective bargaining agreements that must be considered. Unions must act in the best interests of all their members. Yet, a union could choose to negotiate terms which are solely for the benefit of the majority of the membership at the expense of the interests of the minority. Courts must be alert to this possibility. For example, any collective agreement which includes provisions adversely affecting a minority of individuals on the basis of their race or religion should be closely scrutinized. Similarly, a collective agreement term which discriminates against women in the workplace in situations where they do not constitute a clear voting majority of the bargaining unit should not be readily accepted as evidence of the reasonableness of a discriminatory practice.

Nonetheless, a collective agreement may very well provide evidence of the reasonableness of a practice which appears on its face to be discriminatory. However, certain precautions must be taken. For example, it should be demonstrated that the collective agreement was freely negotiated by parties with relatively equal bargaining positions. It should be shown that the agreement did not discriminate unfairly against minorities. In essence, there must be substantive fairness demonstrated by the agreement itself. As well, when considering the weight to be attached to the terms of a collective bargaining agreement, a court must remain flexible and be aware that it is always difficult to obtain complete equality between all the groups forming part of a bargaining unit.

In this case the collective bargaining agreement authorizing compulsory retirement can properly be taken into account as a factor in considering whether the discriminatory policy can be found to be reasonably justified. Here, the term of the collective agreement relating to compulsory retirement will apply to every member of the faculty association. The term was reasonable and appropriate in the circumstances. First, age differs from other grounds of discrimination since everyone of no matter what religion, colour, social origin, nationality or gender becomes older with the passage of time. Eventual retirement with pension security is a matter of concern for all employers in every field. As a consequence, the mandatory retirement term will have an impact on all those members of the faculty association who remain employees of the University until the end of their career. Second, the union did not negotiate the term in a vacuum, but rather, in the context of a system of tenure which protects all members of faculty from dismissal without just cause, and provides a pension scheme assuring the financial security of all retiring members of faculty. It is safe to assume that the terms of the collective agreement pertaining to compulsory retirement were not the manifestation of an abuse of its power by the employer University. Rather, they represent a carefully considered agreement that was negotiated with the best interests of all members of the faculty association in mind.

94In Dickason, the justification for the mandatory retirement provision focused on the renewal of faculty and the avoidance of performance measures. This reasoning is even more compelling in this case, where the negotiated clause relates to the health and safety of the employees. The decision of employees to deal with the risks to their health and the health of the public by negotiating mandatory retirement and full early retirement benefits to minimize the economic impact of that provision is entitled to weight in the analysis.

95The Commission rightly points out that the Tribunal must be wary of using factors such as the “morale” of other employees: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at para. 30; Meiorin, supra at para. 80. As Justice Cory pointed out in Dickason, however, the concern about excessive deference to decisions of the majority that may disadvantage a minority is greatly diminished when the provision in question will affect all members of the bargaining unit who will age with the passage of time.

96Moreover, as discussed in the previous section, a system that individually assessed the risk of each firefighter based on methods other than age could result in the forced retirement of firefighters based upon physical condition, at an age younger than 60, without the safety net of an unreduced pension at age 60. The Association’s choice to maintain a provision which may avoid disadvantage to a minority is significant in assessing whether a change would constitute undue hardship: see Ontario Secondary School Teachers’ Federation v. Upper Canada District School Board (2005), 2005 CanLII 34365 (ON SCDC), 78 O.R. (3d) 194 at para. 36 (Div. Ct.).

97The Commission points out that some other workplace parties in fire departments in Ontario have agreed to age 65 as the cut-off for mandatory retirement. In my view, this is not determinative of whether changing this provision would constitute undue hardship for at least three reasons. The nature of increasing risk as a result of age is that there is no age at which risk suddenly becomes greater; it is a question of choosing a point on a spectrum. There are various reasonable places on that spectrum. Second, there may be reasons or differences between municipalities that affect why particular choices were made. There is no evidence about the choices made elsewhere. Finally, in my view there are various possible responses to the difficult choices involved in this issue that may fall within the range of what is consistent with the Code.

(d) The Possibility of Individual Exceptions

98This case was argued as a challenge to the collective agreement provision, with no evidence presented about Mr. Espey’s individual risk. The Commission and complainant agreed that if the collective agreement provision was not struck down, the complaint must be dismissed.

99This reflected the way in which the parties approached the extension request. The issue was dealt with as a challenge to the collective agreement provision itself, rather than a request for accommodation by examining Mr. Espey’s individual risk of cardiac events or ability to do the job, and the Association was intentionally excluded from the process. Individual accommodation in a unionized workplace is a three-way process that involves the individual, his or her bargaining agent, and the employer, in which all have responsibilities to work cooperatively and flexibly with each other to find a solution: see, for example, Halifax (Regional Municipality) and Municipal Association of Police Personnel (2002), 2002 CanLII 79066 (NS LA), 105 L.A.C. (4th) 232 at para. 61 (Outhouse). This did not happen in this case because of how the issue was framed, and there is no evidence before me about Mr. Espey’s individual risk to determine whether an exception would have been appropriate.

100However, I do not foreclose the possibility that where an individual firefighter initiates a request for an exception to the mandatory retirement date based upon his or her individual risk of cardiac events and medical evidence suggests an extremely low or negligible risk of cardiac events in that individual, accommodation may be required. In McGill, supra, at paras. 18-28, the Supreme Court of Canada suggested that exceptions must be considered to an otherwise valid collective agreement provision based upon particular individual circumstances. It summarized its conclusion at para. 28 as follows:

In short, it cannot be concluded that the accommodation provided for in the collective agreement is a complete answer to the complaint of an employee claiming a more generous accommodation measure. But it is no more appropriate to say that the benefit incorporated into the collective agreement should not be taken into account in the overall assessment of the accommodation granted by the employer.

CONCLUSION

101I conclude that the respondents have met their burden of proof to justify the prima facie discrimination on the basis of age, based upon the combination of various factors that apply in the circumstances of this case. The risks of cardiac events for firefighters are significant and increase with age, in particular after age 60. The risk of an on-the-job cardiac event during emergency response is particularly high. There are particular factors about the occupation of firefighters that lead to an exceptionally elevated risk. While methods of individual testing are more accurate than age in the population at large, there exists no scientific research about whether such risk analysis can be done for firefighters, given the particular risks they face. Finally, the Association and the employer have agreed to this system, which avoids universal individual testing that may lead to prima facie discrimination on the ground of disability, includes protection through an unreduced pension and will apply to all firefighters equally as they age. Taking all this into account I conclude that the respondents have met their burden to demonstrate that Article 17 is reasonably necessary to accomplish its health and safety purposes and that modifying it would cause undue hardship. Accordingly, there has been no violation of the Code and the complaints are dismissed.

102I conclude by expressing my appreciation to the parties for their cooperation in focusing the hearing on the key issues in dispute and the evidence the Tribunal required. Moreover, their strong and thoughtful arguments on behalf of their respective positions were of great assistance in determining the issues in this case.

ORDER

103The complaints are dismissed.