Lauzon v. Ontario Provincial Police, 2011 HRTO 1404

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keith Lauzon Applicant

-and-

Ontario Provincial Police and Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services Respondents

DECISION

Adjudicator: Kathleen Martin Date: July 26, 2011 Citation: 2011 HRTO 1404 Indexed as: Lauzon v. Ontario Provincial Police

APPEARANCES

Keith Lauzon, Applicant ) Kate Sellar, Counsel Ontario Provincial Police and Her Majesty ) the Queen in Right of Ontario as represented ) Darrell Kloeze, Counsel, and by the Ministry of Community Safety ) Vanessa Glasser, Student-at-Law and Correctional Services, Respondents )

1This is an Application filed on September 18, 2008, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application is about whether or not the depth perception vision standard required of police constable applicants to the Ontario Provincial Police (“OPP”) is discriminatory.

2In 2007, the applicant wanted to apply to become a police constable after working in a volunteer capacity as an auxiliary officer with the OPP for many years. As an initial step, the applicant was required to go through a pre-interview assessment used by the OPP. The applicant passed or met the standards for each of the tests in the assessment except vision. He did not meet the requirement of “stereo acuity of 80 seconds of arc or better”, which measures one of the visual cues used in depth perception. As a result of not meeting the standard, the applicant was not allowed to continue in the application process.

3The applicant has strabismus, a condition where the eyes do not align to the same point when focusing on an object. This condition does not mean that the applicant has no depth perception but it does result in the applicant lacking the visual cue measured by the stereo acuity test.

4The applicant alleges that he has been discriminated against on the basis of disability in services and employment by being denied the opportunity to continue in the application process because of this test result. The applicant alleges that the standard is not a bona fide occupational requirement consistent with the Code and the case law, relying, in part, on his contention that the requirement is not sufficiently linked to the job duties of police officers. As a remedy, the applicant requests that the stereo acuity requirement be removed, a Certificate of Results be issued to him so he can proceed to the next step in the Constable Selection System and a third-party consultant agreed to by the parties be hired to produce a full report to establish a revised vision requirement.

5The respondents are the Ministry of Community Safety and Correctional Services, which developed the pre-screening selection process (the “Constable Selection System” or “CSS”), and the OPP, which adopted it and applies it as part of its selection process.

6The respondents take the position that this is a “services” case for both respondents and that the social area of employment is only engaged peripherally. The respondents concede that the stereo acuity requirement is prima facie discriminatory. However, they submit that they have met their onus to justify the standard as a bona fide occupational requirement, relying on the test as articulated in the Code and case law.

7The respondents argue that the standard properly excludes some individuals because they present an unacceptable risk to colleagues and themselves, relying primarily on the importance of depth perception in driving. However, since the filing of the Application the respondents have begun to consider an individualized assessment for the applicant and now concede that given his experience as a volunteer auxiliary officer with the OPP and a volunteer firefighter, which includes driving fire trucks, the applicant should not be automatically excluded and should be given a chance to demonstrate that he can perform the job requirements. As of the date of the hearing, the individualized assessment had yet to be finalized.

8Having regard to the foregoing, the issues have been narrowed to some degree by the positions taken by the parties. The parties agree that the standard in question discriminates against the applicant on the basis of disability (which I also find based on the applicant having strabismus, which prevents him from obtaining the stereo acuity measure required). Thus, the primary issue before me is whether or not the respondents have met their onus of establishing that the requirement is a bona fide occupational requirement or a bona fide and reasonable justification adopted in good faith as provided for in the Code and as established in the case law.

9For reasons outlined below, I find that the respondents have not met their onus.

The Proceeding

10The hearing took place over seven days. During the hearing, I heard from five witnesses: the applicant; a consultant involved in establishing the job duties and physical requirements for police constables for the CSS; a representative of the Ministry; and two witnesses called as experts. Dr. Hovis, an optometrist and associate professor at the University of Waterloo who was responsible for developing the vision standards for the CSS, was called by the respondents and Dr. Johnson, a Professor with the Department of Ophthalmology and Visual Sciences at the University of Iowa was called by the applicant to offer an alternative opinion on the standards and provide related evidence on vision and driving.

11With respect to the expert evidence, while neither party objected to either witness being called, the nature of their expertise was challenged to some degree. Given that the expert evidence relates to several areas of the overview of the evidence provided below, I will address the expertise of the experts at the outset and then provide a summary of the evidence given in the hearing, including the development of the CSS and the vision standard, the applicant’s experience with the application process and the respective opinion evidence offered on the applicable vision standard and related vision issues.

The Expert Evidence

12Dr. Hovis was called by the respondents as an expert in recommending occupational vision standards related to occupational requirements in various industries. He is an associate professor in the School of Optometry at the University of Waterloo. He is a doctor of Optometry and has a Ph.D. in Physiological Optics. Dr. Hovis has been involved in recommending occupational vision standards in a few industries and was the author of the vision standards in the CSS. A primary area of his research has been in the area of colour vision.

13The applicant did not dispute that Dr. Hovis’s evidence was relevant and necessary given that he developed the vision standard at issue but questioned the characterization of his expertise, suggesting that while he had some experience reviewing standards, he had not established any or published in the area.

14Dr. Johnson was called by the applicant as an expert in vision and occupational psychophysics. Dr. Johnson has a Ph.D. in psychology and did post-doctoral work in the Department of Ophthalmology at University of Florida and then at the University of California. At the time he testified, Dr. Johnson was a Professor in the Department of Ophthalmology and Visual Sciences at the University of Iowa, where he does research and teaches, among others, medical students. Dr. Johnson referred to the area of occupational psychophysics as the study of what tasks in an occupation are dependent on vision. During his professional career, Dr. Johnson has spent a number of years establishing vision standards for various occupations including law enforcement, particularly in California. He has also published in the area.

15The respondents did not dispute Dr. Johnson’s expertise in occupational psychophysics as it relates to vision standards but stated that the inclusion of vision was not justified on the basis of his background and education. The respondents highlighted that vision is a very broad designation.

16Ultimately, I permitted both witnesses to testify and reserved on the challenged areas of their expertise, subject to addressing any objections during the course of their testimony. For the most part, there were no objections made to the relevance of the evidence offered.

17To the extent the parties had reservations about the respective expertise of the witnesses I agree that there are limitations with respect to the stated expertise of both witnesses, although ultimately I have considered the evidence of both witnesses with the limitations going to the weight of the evidence where necessary.

18There were three main areas of evidence provided by Dr. Hovis and Dr. Johnson: an overview of vision terminology related to the issues in the case; an overview of the literature on vision and driving; and opinion evidence on the justification for the standard. In the former two categories, I found the evidence more informational and while there were differences in the written reports submitted in advance of the hearing, the differences were less pronounced in their oral evidence. Moreover, I was provided with copies of the main publications relied on which allowed me to separately evaluate the evidence presented. Where necessary I address any differences in the evidence and indicate my findings below.

19With respect to the opinion evidence about the justification for the standards, I agree with the applicant that while Dr. Hovis has some experience in reviewing and recommending standards, his experience was not extensive, nor had he published in the area. However, ultimately I did not find the differences in his opinion from that of Dr. Johnson to be material to my decision. Even Dr. Hovis expressed reservations about the sufficiency of the evidence underlying the standard he recommended.

20I will now turn to an overview of the evidence presented.

The Evidence

21Most of the evidence was not in dispute. The main area of dispute was the expert evidence, although as indicated above, even the substance of much of that evidence was consistent. Where necessary, I summarize the differences in the evidence and indicate my findings.

22In reviewing the evidence I will set out a summary of the background and chronology of events focusing on the establishment of the CSS and the vision standard, the applicant’s experience in the process and finally a review of the expert evidence as it relates to the justification for the standard.

Background and Chronology of Events

The Constable Selection System

23The vision standard was one of several standards developed as part of a prescreening process for selecting police constables. The development of the standard was an initiative of the then Ministry of Solicitor General and Correctional Services. A brief overview of the CSS provides some context to the vision standard. In this overview I have considered the oral evidence presented as well as the various reports submitted about the CSS.

24In 1991, the Ministry initiated a project to develop a standardized selection process for police constables in Ontario. At the time, there was a wide variety of selection criteria and processes in place at various police services throughout Ontario. Among other things, the project’s objectives were to develop a selection system based on bona fide job requirements, to have uniform quality among candidates and to have the recording of results in a centralized database which could be accessed by all police services to which an applicant may want to apply.

25To develop the system, a core working group was established comprised of representatives of the various police services and the provincial government to provide direction to the project. A specific sub-committee was established to determine the medical and physical skills required: Medical and Physical Skills and Abilities Sub-committee (“MPSAC”). The MPSAC relied on the advice of consultants to determine the requisite medical and physical skills and abilities. In 1995, Jim Shaw and Norm Gledhill were retained for this purpose. Both had experience in conducting job analyses and the development of bona fide occupational requirements.

26Mr. Shaw gave evidence at the hearing. Mr. Shaw described how a comprehensive job review was done to identify the physically demanding tasks that were required in police work. The list of tasks was determined through consultations with members of the committee and representatives of the Ontario Police College, where police officers are trained once hired by a police service or the OPP. This list of tasks was then validated through focus group interviews conducted with police constables throughout the province and a questionnaire was separately distributed to other police officers. The objective was to identify only those tasks that were job-related (tasks had to be performed at least yearly) and those that were physically demanding in which the safety of the police constable, his/her co-workers or the public would be compromised by failure to complete or ineffective performance of the task.

27Once the task list was determined, the consultants developed a physical readiness evaluation for police (PREP) protocol. In his testimony, Mr. Shaw described this process as converting the job analysis into numbers (reflecting the physically demanding tasks) by collecting statistics from volunteers and then designing a protocol where related performance could be measured. This protocol was pilot tested and then fine-tuned.

28The task list included reference to driving a car and other vehicles and driving in pursuit of vehicles, but the decision was made to forgo a driving assessment for the reason that driving skills are taught in the Ontario Police College. However, the core working group clarified that the applicant requirements would include “a valid licence to drive a car with full driving privileges”.

29The requirements for vision, speech and audio were handled differently from the others. Mr. Shaw stated that he and Dr. Gledhill recruited “experts” to work with them. In the vision area, they recruited Dr. Hovis on the recommendation of Mr. Shaw’s personal optometrist. At the time of his initial contract with the Ministry, while Dr. Hovis had some experience in reviewing standards and/or providing guidelines, he had not established a full vision standard. In addition, while he had published on colour vision, he had not published in the area of depth perception and stereo acuity.

The Development of the Vision Standards

30While Dr. Hovis established a full vision standard, this Application is about depth perception and the standard developed in that regard. In order to provide some context for the standard that was adopted and the reasons for its adoption, I will briefly review some of the vision functions and related terminology explained by both Dr. Hovis and Dr. Johnson in their testimony that relate to strabismus and depth perception.

31Depth perception is based on a number of visual cues, some of which are binocular (based on the coordinated activity of two eyes) and others monocular (based on vision in one eye). The primary binocular cue is stereopsis in which slight differences in the location of images in each of the two eyes results in an impression of depth; in Dr. Hovis’ words, it is fine depth perception. Monocular cues include overlays (an overlapping object is observed to be nearer than an overlapped object); aerial perspective and texture (the texture and detail of surfaces becomes smaller and less distinct with increasing distance); size (smaller objects appear farther away); motion or movement parallax (a phenomenon that causes objects nearer than the observer’s point of fixation to move in a direction opposite the movement of the observer and objects farther away to move in the same direction as the observer); and light and shade (objects that are closer appear brighter than those farther away).

32There was no dispute that stereopsis is most important for viewing objects at distances shorter than a metre; there was some variation of opinion of its relative importance at longer distances, although there was general agreement that after 10 metres, it was not important as it provides either no useful information (Dr. Johnson) or is insignificant (Dr. Hovis).

33There is no instrument available that allows for the clinical measurement of depth perception. Instead, what are available are tests for stereo acuity, which measures stereopsis alone. Stereo acuity is a clinical measurement of an angular value in terms of seconds of arc. The bigger the arc, the worse the stereopsis. The stereo acuity tests are limited insofar as the tests are reliable if someone has stereopsis, but are not reliable if someone does not.

34A person with strabismus has binocular vision (in the sense that s/he can see out of both eyes) but their eyes do not align to the same point when focusing on an object. As a result, a person with strabismus does not have stereopsis, although they would have access to the other cues available for depth perception.

35Another term requiring clarification is phoria. While the “experts” differed somewhat in their descriptions, in general phoria was described as the amount of work the eye has to do to move from a resting position to fixate on an object. According to Dr. Hovis, there could be a relationship between phoria and strabismus since if one eye is turned then the eye needs to do more work to bring itself into alignment with an object on which it is fixating.

36Finally, reference should be made to diplopia, which is a term for double vision. An individual with strabismus may experience double vision as a result of the brain viewing two different images, although both Dr. Hovis and Dr. Johnson stated that this was less likely if someone has had strabismus from an early age as the brain consistently suppresses one of the images. There was also agreement that an individual’s self-report of the presence or absence of double vision may not always be reliable.

37As will become evident below, in developing the standards, Dr. Hovis considered depth perception and phoria simultaneously as he viewed the latter as another mechanism to screen for binocular vision.

38Before the standards were developed, the OPP had only an uncorrected worse eye acuity standard. Dr. Hovis explained that acuity refers to the ability of the eye to resolve fine detail with 20-20 as the ideal clinical standard. There was no standard for depth perception.

39In developing the vision standards, Dr. Hovis reviewed material prepared by Mr. Shaw (including the documentation about the CSS, the questionnaire and focus group results); reviewed the literature (to determine what standards were controversial); and examined the research done on visual performance and policing. The supporting material related to depth perception was limited. While questions related to vision had been included in the questionnaire none related to depth perception. In the focus groups 114 scenario reviews were conducted and in three instances, participants mentioned that “adequate depth perception” was a necessary skill.

40As for the literature, the primary source was a 1980 study of vision standards based primarily on an analysis of the tasks of police officers in Columbus, Ohio by James Sheedy, assistant professor at The Ohio State University College of Optometry. (James E. Sheedy, “Police Vision Standards” (1980) 8:3 Journal of Police Science and Administration 275-285.) Dr. Sheedy stated that officers engaged in a number of tasks including driving at speeds of 50 mph on crowded city streets, driving quickly through streets and alleys while looking for fleeing suspects and constantly looking and scanning while driving. While Sheedy acknowledged that monocular cues provide a “form” of depth perception, he concluded that “good spatial perception and, therefore, good stereopsis” is required for adequate police performance as an officer must be able to accurately assess the relative distances of cars, pedestrians and other objects. It is apparent that this conclusion was based on Sheedy’s professional opinion as opposed to performance-based data demonstrating the connection.

41Based on the review of the literature and the information provided about the tasks, Dr. Hovis made recommendations for a number of vision standards including depth perception. In summarizing his recommendations and justifications, Dr. Hovis commented as follows:

…Because one of the goals is to set province-wide standards, I will be assuming the more stringent visual demands. It is possible that a given jurisdiction may not require this level of standard and so they may want to modify these standards to fit their situation.

42The specific recommendation for depth perception and binocular vision was drawn primarily from the Sheedy study both in the standard and in some respects in the articulation of duties performed. At the time the standard was described as follows:

Depth Perception and Binocular Vision

Stereo acuity of 80 sec arc or better. Candidates with phoria exceeding 5 eso or 5 exo at distance or a phoria exceeding 6 eso or 10 exo at near should be referred to verify that binocular depth perception is acceptable and to establish that the possibility of double vision is low.

43The “justification” described in the report ultimately submitted for the standard stated, in part, as follows:

In the course of carrying out his/her duties, the constable is required to have adequate depth perception in order to manoeuvre the car through traffic and narrow streets, judge relative distances of objects while scanning a visual scene and judge relative distances of hazards while chasing a suspect. Because many of these judgments are within 15 metres, the level of depth perception required for these tasks is only possible with both eyes functioning together normally. Depth perception can be assessed with an industrial screening machine or test booklets using polarized targets while the candidate is wearing their normal correction. A result of 80 sec arc or less is considered to be acceptable [citing Sheedy]. Values that are larger are unacceptable.

In addition to adequate depth perception, the candidate should not experience double vision. Perceiving two of the same object leads to confusion, indecision and general coordination problems that will seriously compromise the constable’s performance. Although double vision can be eliminated by simply closing one eye, this would reduce the officer’s peripheral vision and depth perception.

Double vision is more likely to occur when there is strabismus or some other eye coordination problem. The binocular depth perception test will detect most individuals with a strabismus because these people usually do not have the fine binocular depth perception. …

44The standard of 80 sec of arc or better is two standard deviations away from the mean. Dr. Hovis stated that 99 percent of the population with “normal binocular vision” would have a measurement of this level.

45Dr. Hovis stated that based on his review he felt the standard was applicable to most police services in Ontario, at least in the urban areas. This opinion was premised on his view that the driving in urban areas would be analogous to the driving functions in the Sheedy study.

46Dr. Hovis’ standards were incorporated in the report presented to the Committee and adopted. The evidence did not reflect that anyone queried the connection of the standards to job performance. There was no pilot testing done of the vision standards.

47The standard as set out above was eventually broken down into two separate standards: a standard for depth perception of stereo acuity of 80 seconds of arc or better; and a phoria standard consisting of the values set out in paragraph 42 above.

The Adoption and Implementation of the CSS

48Since the development of the standards, the Ministry has reviewed the standards periodically. Subsequent to the release of the Supreme Court of Canada decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), the Ministry reviewed the physical readiness test (“PREP”) standard and confirmed that it met the requirements of a BFOR in its view. A similar review was not conducted on the vision standards although there has been some review of the vision requirements. At some point following the applicant’s application to the OPP, the depth perception standard was restated as “stereo acuity of 80 seconds of arc or better and no strabismus”.

49The CSS was implemented in 1998. Apart from instituting a pre-screening process, once an applicant has a certificate of results there are other requirements in the process, including a background reference check and an essential competencies interview. The certificate of results is valid for three years with the exception of the PREP, which has a six-month expiry date.

50The Ministry grants licences to the Ontario Association of Chiefs of Police to sub-licence the CSS to individual police services to use the system to assess police constable applicants. Individual police services in Ontario are not required to use the system, although in practice, it is widely used. If a police service licenses the CSS they are not permitted to modify the standards in any of the categories.

51In addition to the OPP, as of the dates of the hearing, the CSS was being used by 41 of the 48 municipalities with police services.

Mr. Lauzon’s Application

52The applicant has had strabismus since a young age and testified that he has never viewed himself as having a “problem”. He has played sports and has also performed near work such as sewing (the type of near task where there is a consensus that stereopsis is an important visual tool).

53At the time of the hearing, the applicant was employed as a security guard in the fire and security division with Daimler Chrysler Canada, a position he had held for many years. In addition, as noted above, the applicant has been an auxiliary member of the Ontario Provincial Police since 1994 and a volunteer firefighter with the town of Amherstburg for several years. As an auxiliary member, the applicant accompanies and assists regular police officers while they are on patrol. The applicant testified that he is trained in firearms, self-defence and high-risk takedowns and described his involvement in one police pursuit. He states that he does about 10 hours per month of patrol including community programs such as seat belt clinics. As a volunteer firefighter with the Town of Amherstburg, the applicant is required to drive all three fire vehicles including the ladder truck. The applicant estimates that he responded to 37 calls in the six-month period prior to his Application.

54The applicant has a DZ driver’s licence which permits him to drive the various fire trucks and vehicles as a volunteer firefighter. Thus, he meets the stated qualification of a driver’s licence with full driving privileges. In fact, as an individual with strabismus, the applicant is not required to meet a depth perception or stereo acuity standard prior to obtaining a regular licence or a DZ licence. As for his driving record, the applicant has not had any motor vehicle accidents during his volunteer police or firefighter work and over the course of his 44 years has had only two minor accidents.

55In this case, the applicant took the pre-interview tests over the period between June 2, 2007 and September 11, 2007. The applicant’s vision is 20-20 and he passed or met the standards for all of the tests which included visual acuity (corrected and uncorrected), colour vision, and peripheral vision with the exception of the standard for depth perception i.e. “stereo acuity of 80 seconds of arc or better”.

56It should be noted that the applicant’s test result for Lateral Phoria was also not within the accepted range. As noted above, a result outside the range for this standard may be indicative of double vision or absence of binocular vision. This type of result does not automatically result in a prospective candidate being disqualified but they are referred for further consideration. In the case of the applicant, while his phoria value was outside of the range he was not referred for further consideration for reasons which Dr. Hovis was unable to explain. While I heard some evidence about the phoria values and their reliability, the parties indicated in final submissions that the issue in dispute is the stereo acuity. In light of this, I have not addressed the evidence heard on the phoria value.

57As a result of the applicant’s test result for stereo acuity, the applicant was given an option of seeking, at his own expense, a further assessment by an eye care professional for the purpose of establishing that his vision is acceptable according to the standard.

58The applicant elected to do so and on October 30, 2007, was examined by Dr. Edsel Ing, an ophthalmologist in oculoplastics, strabismus, surgical neuro-ophthalmology and an Assistant Professor at University of Toronto. In his report of October 30, 2007, Dr. Ing stated as follows:

…

Although strabismus surgery may improve [the applicant’s]… alignment and cosmesis, it might potentially cause him to see double vision when he is asymptomatic now. I did not think that even with successful strabismus surgery I could give him 80 seconds of stereoacuity because he does not achieve this with prism correction. However I am not sure why fine stereopsis as needed for close-up microscope work would be important for his employment aspirations. He has depth perception quite adequate for police work. He has 20/20 acuity from either eye and full perimetric fields in either eye. He has no diplopia on binocular field of single vision. He does not close one eye to do activities of daily living. I anticipate he should still be able to function in an emergency if his preferred “straight eye” was injured. To prove this point he might undergo driving and firearms testing using his left eye only (i.e., his straight right eye would be patched) If he passed his tests there should be no practical ophthalmic reason for impeding his career aspirations.

59On November 5, 2007, a copy of this report was faxed to Tina Larson, an administrative support person, working in the OPP. Dr. Ing added a note indicating that the applicant does not meet vision testing standard imposed for constable applicants, but also commenting that he thinks he can function safely in the duties of a police officer.

60On November 22, 2007, the applicant received the CSS testing results from the Ontario Provincial Police confirming that he had passed or had acceptable results in every category but for vision.

61In January 2008, the OPP asked the Ministry for a comment on the medical report received from Dr. Ing. On January 25, 2008, Carroll Robinson, the manager of the Selection Systems and Appointments Unit of the Public Safety Division of the Ministry, forwarded the referral and Dr. Ing’s report to Dr. Hovis asking if there was anything in the report that would warrant having a closer look at the job-related vision competency of the applicant. Dr. Hovis responded in part as follows:

Actually, no. Mr. Lauzon has a fairly significant eye turn that is both [sic] the vertical and horizontal direction…The report suggests that the eye turn has been present since his early childhood and that Mr. Lauzon alternates as to which eye [sic] uses to fixate. In short, he does not have single clear binocular vision.

The ophthalmologist is incorrect in his opinion that stereo acuity is only needed for close-up microscope work. Although he may have adequate depth perception for most every-day activities, it is insufficient for the more demanding tasks associated with policing duties. Individuals with reduced stereo acuity show significantly poorer performance in the maneuverability of vehicles, increased rates of accidents, and reduced hand-eye coordination on tasks within 4 to 10 feet. Second, the lack of normal binocular vision means that your ability to [sic] fine detail, particularly at longer viewing distances, is also significantly reduced.

62There was no request to speak to Dr. Ing nor an offer that the applicant be given an opportunity for individualized testing at this time.

63In the hearing, Dr. Hovis clarified his position stating that Dr. Ing’s conclusion was probably correct for most police work but that he does not agree on the issue of driving and in particular higher-performance driving, which he says is of the “emergency type”, not the more routine.

64Dr. Hovis states that he subsequently became aware that the applicant had been an auxiliary officer for 14 years. While he did not have information as to what the duties were, the fact that he was doing some police duties raised the question of whether or not he could perform the duties even though he did not meet the standard. In an email dated October 11, 2008, Dr. Hovis communicated his concerns to Mr. Robinson at the Ministry and thereafter, Dr. Hovis and representatives of the Ministry began conversing about what clinical and practical testing should be done to assess the applicant’s ability to perform the job tasks.

65As of the date of the hearing, the primary focus of the assessment was on first conducting a clinical test to confirm the absence of double vision and retesting of depth perception (although it included a number of other vision tests), followed by a practical driving test that incorporates a stopping distance/adequate braking skills test; backing into a parking space; and a slalom course of “S-curves” in which the applicant would be required to maneuver the car at 30 to 40 kph through a winding course. The applicant’s performance would be measured as against a control group. Dr. Hovis testified that he was not expecting the control group to do anything more extraordinary than general public performance driving.

66The finalization of the individualized testing has been delayed for a number of reasons including change of staff at the Ministry (the departure of Mr. Robinson and the replacement with Ms. Zafar); the requirement that the proposed test had to go through an ethics review at the University of Waterloo; the difficulty in finding an available track for a driving test and a potential group of subjects; a change in the Ministry’s procurement process which impeded Dr. Hovis finalizing a contract; and the hearing before me.

67Dr. Hovis stated that use of a control group would give information over the long run that could be used to set the standard and refine it.

The Justification for the Standard

68I heard evidence from Dr. Hovis and Dr. Johnson as to whether existing research on driving and binocular vision issues justifies the standard. While competing opinions were offered, their respective views of the literature was not measurably different, which leads me to conclude that there is insufficient research supporting the retention of the depth perception standard as currently drafted. Both experts agreed that there is no jurisdiction where stereo acuity or “normal binocular vision” has been instituted as a performance-based standard for police officers, i.e. based on evidence connecting it to the actual performance of duties of police officers.

69Dr. Hovis testified that the police engage in higher-performance driving because of the need to provide an emergency response and given their role in pursuit and apprehension. He concedes that members of the general public (including drivers with strabismus who are licenced without having to meet a stereo acuity standard) also engage in “performance driving”. He states that the current standard continues to be necessary given that there is sufficient data that there is “some risk” if an individual does not meet the standard.

70In concluding that there is “some risk”, Dr. Hovis relies primarily on three sources not cited in his original justification, although even his view of the research is that it is “thin”. A summary of the three studies is as follows:

• In a study of taxi drivers in the Province of Quebec, the effect of binocular vision problems on the drivers’ distribution of crashes was examined (as well as other variables such as class of permit held, age, ownership, and a driver’s past record). Binocular vision problems were defined as non stereoscopic vision (greater than 160 seconds); an acuity of 20/40 for the better eye and zero in the other (thus including individuals who have lost an eye or have very little vision at all in one eye). The study found that drivers with binocular vision problems had on average more accidents than “healthy drivers”, although the authors conclude that the results are not entirely clear (Urs Magg et al., “Taxi Drivers’ Accidents: How Binocular Vision Problems Are Related to Their Rate and Severity In Terms of the Number of Victims” (1997) 29:2 Accident Analysis and Prevention 217-224.) (the “taxi drivers’ study”).

• In a pilot study published of 20 drivers (10 with strabismus and defective stereopsis, and 10 without strabismus and with stereopsis), the comparison of performance in three simulated driving tasks was examined. The tasks selected – stopping in front of an obstacle, reversing into a parking space and manoeuvring through an S-shaped winding course between two parallel lines of traffic cones – were presumed to depend on at least some stereopsis and were performed binocularly and monocularly (with the non-dominant eye covered). Only in the slalom test did the subjects with strabismus and defective stereopsis perform significantly worse (although the actual result was seven passed and three did not). The authors state that the extent to which “binocular vision or depth perception influences driving performance is somewhat controversial”. While they conclude that stereopsis has a positive effect on driving performance in dynamic situations at intermediate distances, they also note that they plan to repeat the slalom test with a larger number of subjects to determine whether it is “indeed essential to driving performance in dynamic situations…” (Andrea Bauer et al., “The relevance of stereopsis for motorists: a pilot study” (2001) 239 Graefe’s Archive for Clinical and Experimental Ophthalmology 400-406.) (the “Bauer study”).

• In a study of 30 adults with strabismus (17 with diplopia [double vision] and 13 without) the impact of strabismus on the quality of life was examined by posing open-ended questions about the impact of strabismus on quality of life. Fourteen of the 17 patients (82 percent) with diplopia mentioned difficulties with driving. The number of patients without diplopia mentioning driving was lower – nine (69 per cent). (Sarah R. Hatt et al., “The Effects of Strabismus on Quality of Life in Adults” (2007) 144 American Journal of Ophthalmology 643-647.)

71Based on this research, Dr. Hovis concedes that the quantification of the data is weak, the evidence is inconclusive and people are therefore excluded without a strong link. He concedes that the standard may exclude someone who could do the work safely. In light of this, Dr. Hovis suggests that the standard should be a triggering value that further evaluation of a person’s binocular vision is needed. Notably, in final submissions respondent counsel indicated that this position was not being advanced by the respondents.

72Dr. Johnson highlighted many of the deficiencies with the studies relied on by Dr. Hovis. In the case of the taxi driver study, he indicated that it was difficult to extrapolate to police work. With respect to the Bauer study, he highlighted the “pilot” nature of the study and indicated that the drivers with strabismus actually performed better on one of the tests: in estimating the relative position of distant objects. Finally, he noted that the third study was entirely qualitative as it was based on self-reports and thus was not reliable.

73Elsewhere in his evidence, Dr. Johnson did note that there have been studies of the impact of monocularity on driving and that studies show that monocular drivers were not found to be significantly worse than binocular drivers in the safety of regular driving functions. In the case of monocularity, a driver would not have vision in one eye which would also mean there is an absence of peripheral vision in one eye.

74In light of the limited evidence, Dr. Johnson stated that the standard was unnecessary as it was not linked to the job performance of police officers. In the absence of performance data, he stated that you are left with opinion and assumption which is not sufficient for justifying a standard.

75The experts also provided evidence on vision and driving. As with much of their evidence I did not find there were significant differences.

76I heard evidence about driving in degraded environments such as nighttime and poor weather conditions. Dr. Hovis opined that in such environments, depth perception cues would be affected. Dr. Johnson did not disagree but clarified that all cues including stereopsis would be affected.

77Both experts agreed that the ability to compensate when an individual has a vision deficiency varies from person to person. Dr. Hovis acknowledged that not every individual with strabismus would have driving problems.

78Both experts also agreed that there are other factors, separate from visual function measures, that affect the rate of accidents. Dr. Johnson described that recent studies indicate that cognitive, perceptual and informational processing factors are much stronger predictors of accidents than visual function measures; Dr. Hovis agreed, clarifying that he also would add prior accidents.

Other Evidence

79Some evidence was led about standards outside of Ontario. For example, the Royal Canadian Mounted Police and Alberta have a stereo acuity standard. There was no evidence that a stereo acuity measure was used in any other provincial jurisdictions.

80In the United States, some professional organizations have recommended a stereo acuity standard, although there appeared to be very few instances where a police jurisdiction adopted one.

81I also heard some evidence about other screening requirements adopted in some jurisdictions in the United States such as a requirement of depth perception, normal or good binocular vision or a minimum acuity standard for each eye (with Dr. Hovis suggesting that the latter was a “back door” method for excluding someone with strabismus). With respect to the latter, Dr. Johnson provided a contrary view, suggesting that where he recommended such standards in his work, it was based on performance and the possibility that an employee would need to perform their work with one eye (where for example the other eye was injured).

82Ultimately, while I considered this evidence I do not attach much weight to it nor do I find that I need to resolve the differences. What is apparent is that a stereo acuity standard is not universally used by police services. Where a standard or related standard is in place, in the absence of more detailed information about related job performance and/or justification, it is not of assistance to assessing the standard in this case.

The Legal Framework

83The relevant provisions of the Code provide as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

2. 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.

17.(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of the disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

84The parties agree that there is prima facie discrimination in this case although they disagree to some extent on what social area is engaged. In respect of the Ministry, the parties agree that the social area is services, but in respect of the OPP, they take different positions: the applicant states that the discrimination there is in respect of employment whereas the respondents state that they view the OPP as also providing a service as it provides the testing required in the same manner as other agencies do for potential police constable candidates. Given that the applicant applied to the OPP (albeit midway through the testing procedures), I am inclined to agree with the characterization as being “with respect to employment”, but ultimately, whether it is characterized as services or employment discrimination, it does not lead to any different analysis or result, nor did the parties suggest otherwise.

85Having established that the applicant is discriminated against by the standard, the primary issue I need to determine is whether or not the respondents have met their onus of establishing that the standard is justified in these circumstances. In their oral submissions, neither party expressly referred to the sections of the Code, although in the Ministry’s Response to the Application it cited section 17 as the applicable defence. In their final submissions, the parties were agreed that the test to be applied is as follows: can the standard be justified based on the requirements set out by the Supreme Court of Canada in Meiorin, supra, and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (S.C.C.), [1999] 3 S.C.R. 868 (“Grismer”). In Entrop v. Imperial Oil, 2000 CanLII 16800 (ON C.A.), at paras. 77-85 the Court of Appeal held that the unified approach in Meiorin applies in Ontario.

86I accept that the test to be applied in order to establish a justification under either section 17 or section 11 of the Code is the test set out in Meiorin. In particular, the respondents must prove:

• That the stereo acuity requirement was adopted for a purpose or goal that was rationally connected to the performance of the job;

• That the stereo acuity requirement was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

• That the stereo acuity requirement is reasonably necessary to accomplish the purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individuals sharing the characteristics of the applicant without imposing undue hardship upon the respondents.

87The applicant argues that the respondent has not demonstrated that any of the foregoing requirements are met. The applicant argues that the stereopsis requirement is not rationally connected to the job of being an effective police officer as it does not measure vision or even depth perception, but just one cue of depth perception. Further, the applicant submits that the second requirement is not met as there has been no evidence presented from which I can infer good faith. The Ministry witness Ms. Zafar testified that she believed it was a necessary requirement because Mr. Shaw told her it was; Mr. Shaw testified that he believed it was necessary since Dr. Hovis recommended it; and Dr. Hovis testified that the connection to job duties was weak and had information that it was not necessary in all police services at the outset. In the face of this evidence, the applicant argues that good faith cannot be inferred.

88Finally, the applicant argues that it is not reasonably necessary, relying on, among other things, the contention that it is not a minimum standard, it appears to be premised on absolute safety as opposed to reasonable safety and it is not sufficiently linked to the job duties of police officers.

89The respondents argue that they have met the requirements. The respondents argue that the general purpose was rationally connected to the safety of the police constable, co-workers and the public.

90The respondent argues that the standard was adopted in an honest and good faith belief relying on the development of the CSS (which they note Dr. Johnson mentioned was well-done) and that the standard selected was one that in the “normal” population 99 per cent would meet as it is two standard deviations from the mean.

91Finally, the respondents argue that the third requirement is also met. In their submissions the respondents state that the list of factors to be applied are not those in Meiroin, as they have chosen to accommodate the applicant, but instead those set out in Entrop at para 97. Applying the factors in Entrop, the respondents argue that the standard is not arbitrary for the “normal” population (and they have addressed the applicant’s situation by allowing an individualized assessment); there is a link between depth perception and police work; and there are no other means available to measure depth perception (in the circumstances, the respondents suggest the stereo acuity test should be considered as a proxy for depth perception).

92The respondents state that they do not rely on “absolute” safety, but instead a reasonable standard of safety, referencing section 43(1)(c) of the Police Services Act, R.S.O. 1990, c. P.15. This section provides that no person shall be appointed as a police officer unless he or she is physically and mentally able to perform the duties of the position, having regard to his or her own safety and the safety of members of the public. In this context, the respondents argue that they can justify the standard since they have agreed to accommodate the applicant. Further, while not making a commitment in respect of any future applicant, the respondents state that if another applicant presented who was in the “same shoes” as the applicant in this case, they see no reason to respond any differently. In this respect, the respondents suggest that each case should be judged on its own merits and clarify that to the extent Dr. Hovis testified that the stereo acuity test was valid for triggering whether further evaluation was required, he was not speaking for the Ministry.

The Application of Meiorin Standard to this Application

93I find it unnecessary to decide whether the stereo acuity standard meets the first two requirements in Meiorin. Even assuming that the standard does, I find that the respondents have not met their onus of establishing that the existing measurement of depth perception – stereo acuity of 80 seconds of arc or better - is reasonably necessary to accomplish the goal of a police officer being able to do his/her work safely and that the respondents cannot accommodate individual capabilities and differences without incurring undue hardship. As a result I find that the applicant was discriminated against on the basis of disability by the respondent Ministry in implementing the standard and by the OPP by adopting it in their pre-selection process and applying it to reject the applicant from further consideration.

94In determining whether the standard is reasonably necessary, I have focused on the job function of driving. While in argument counsel for the respondents suggested that he was not sure he wanted to limit “depth perception” to driving, he did not expand on what other tasks may be relevant and the evidence in the hearing reflects that driving is the primary concern. For example, Dr. Hovis stated that he agreed with Dr. Ing’s conclusion about the applicant being able to perform police work safely except for driving. In addition, the more current literature relied on to support the link between absence of stereopsis and impact on driving ability was in respect of driving (see the studies referred to in paragraph 70 above).

95In considering the issue of driving, given that members of the public who have strabismus drive and obtain licences without having to meet a stereo acuity requirement, to some extent the question is whether there is something about police duties in driving that requires an extra level of depth perception to justify such a standard.

96There is a lack of clarity in the job duties at issue. The description of the driving duty used by Dr. Hovis was not derived solely from the task list for police officers in Ontario. While the task list included driving and driving in pursuit of vehicles, any further descriptor of those functions came in part from the literature and appears to have changed over time. For example, Dr. Hovis originally described the duty as maneuvering a car through traffic and narrow streets; in his testimony he spoke of performance or emergency driving; and in proposing an individualized assessment focused on the slalom driving modeled on the Bauer study. In argument counsel for the respondents described the skill as maneuvering vehicles at moderate and high speeds efficiently. While the differences may not appear to be material, as Dr. Johnson suggested in his evidence, making assumptions about job duties can be problematic in part because there may be policies and procedures which govern the actual requirements. I found the link to job duties vague.

97However, even accepting that the task at issue is maneuvering a police car at moderate and high speeds, I find that the respondents have not met their onus to establish that the stereo acuity standard as presently drafted is reasonably necessary to identify those individuals who cannot perform the driving functions safely.

98I am not convinced that the standard is a minimum standard. In developing the vision standards, Dr Hovis indicated that he adopted the more stringent standards because he was setting province-wide standards. He also stated that he was unaware that a given agency could not vary the standard and had he known, he may have added that agencies could set their own standards. In the case of driving duties, Dr. Hovis explained that these duties may not be applicable to a rural setting as the driving may be less demanding, thus implying that some police services may not require the skills that were of concern to him. While the respondents suggest that this should not negate the standard given that a universal standard is being established, I do not find this argument convincing. In establishing what is, in essence, a barrier to individuals with strabismus from applying to an entire occupation (given the wide adoption of the CSS), I would have expected that it is important to consider whether employees in every police jurisdiction in Ontario require the same abilities.

99In any event, there is no performance-based evidence linking a certain measure of stereo acuity to the safe performance of the type of driving relied on by the respondents in police work, whether in Ontario or elsewhere. The standard itself was adopted from the Sheedy study which looked at police work in Columbus, Ohio. Even assuming the description of police work is representative of police work in Ontario (which as noted above is not entirely clear), the standard is based on what appears to be the author’s professional opinion that the amount and type of driving which an officer does requires good depth perception and therefore stereopsis. This operates on the assumption that depth perception and stereopsis are the same, which is not supported by the evidence. As Dr. Hovis concedes in the hearing, an individual with strabismus who fails the stereo acuity test may still have adequate depth perception.

100Apart from research involving police work, the other research referenced was limited and as acknowledged by Dr. Hovis, weak and inconclusive. In the Bauer pilot study, three out of ten drivers with strabismus had difficulties performing the slalom course, but seven did not. Moreover, the authors themselves did not draw any definitive conclusion from this research, suggesting that they planned to repeat the study with a larger group to determine whether stereopsis was indeed essential to driving performance in the dynamic situations, and therefore necessary for the safe operation of vehicles.

101Based on this limited research and the substance of the expert evidence (confirming that it is inconclusive), I cannot conclude that the respondents have shown that a standard that mandates that an applicant must meet a certain measure of stereo acuity is reasonably necessary for police applicants in Ontario.

102While the respondents argue that stereo acuity should be considered as a proxy for depth perception, I cannot conclude that it is a good proxy. Unlike Espey v. London (City), 2008 HRTO 412, where the Tribunal found age was a very significant contributor to the risk of cardiac events and thus accepted it as a proxy, here the evidentiary connection is not strong. The stereo acuity standard measures only one cue for depth perception and while indicating whether an individual has stereopsis, based on the evidence it does not appear to be a strong predictor of whether they have “adequate” depth perception.

103I agree with the applicant that the standard of safety underlying the retention of the standard based on this research seems to be analogous to absolute safety. While the respondents suggest otherwise – defining their objective as a reasonable measure of safety – I do not see that supported in the standards, and its justification since Dr. Hovis’ opinion as to why the standard should be retained is that there is “some risk”.

104In their final submissions, the respondents suggest that to establish a better link to job duties by conducting research could be time-consuming and costly. However, no evidence was led about the costs beyond some figures given by Dr. Johnson in his cross-examination, which he qualified as “highly speculative”. I have difficulty in attaching much weight to this evidence given its source and qualification, particularly where the respondent witnesses who provided evidence about the development of the standard did not indicate that the reason research was not conducted on vision standards or depth perception was because of cost.

105While much of the evidence justifying the standard is related to the issue of depth perception (as it is labeled in the vision test), there was some evidence that to the extent the stereo acuity standard screens for strabismus, it was justified. The reason for this is because if an individual has strabismus s/he may experience double vision, although the presence of double vision appears to depend on a number of factors including the age at which one develops strabismus. In light of this concern, the respondents included testing for double vision as part of the clinical test to be given to the applicant prior to the individualized driving test. While I can appreciate the concern regarding the presence of double vision, I am not convinced that that concern justifies a test that measures stereo acuity and then excludes everyone who does not meet it. As Dr. Johnson suggested, if double vision is a concern, it can be separately tested.

106The question remains in respect of the offer to accommodate the applicant through an individualized assessment. While the offer is a positive step, I do not find the “offer,” as presented, immunizes the respondents from a finding of liability. The offer to individually assess the applicant came many months after the applicant was rejected from the CSS and thus the discrimination had already occurred and as of the date of hearing had not been finalized. While I can appreciate that some time may have been required to develop a test, the length of the delay is not insignificant. Further, the suggestion that the hearing itself was a factor given that this decision may indicate that an individualized assessment is not required does not assist the respondents in establishing that they accommodated the applicant.

107Further, based on the evidence presented, the form of the individualized assessment raises issues. Dr. Hovis testified that the proposed assessment is modeled on the Bauer study. This appears to be approaching the question of accommodation in a manner similar to the original articulation of the standards – with reference to literature that is available as opposed to starting with the driving tasks of police in the province and determining what level of performance is required to perform those tasks safely. There was some indication in the evidence that a slalom test was discontinued at the Ontario Police College because it was not seen as realistic to the job. Obviously, any individualized assessment that is developed would need to be designed with reference to job duties and job performance of police officers.

108In summary, I find that the respondents have not met their onus of establishing that the existing measurement of depth perception is reasonably necessary to accomplish the goal of a police officer being able to do his/her work safely and that the respondents cannot accommodate individual capabilities and differences without incurring undue hardship. As a result I find that the applicant was discriminated against on the basis of disability.

REMEDY

109I now turn to the issue of remedy for the violation of the applicant’s rights under the Code. Initially the applicant’s requested remedy included compensation for injury to dignity, feelings and self-respect and the development of an alternative testing method to allow him to demonstrate that his vision was sufficient to meet the essential duties of police work. However, on October 16, 2009, the applicant filed a Request for Order During Proceeding seeking to amend the remedy. The applicant now requests that if there is a finding that the vision requirement related to stereopsis is discriminatory and not a bona fide occupational requirement, the requirement be removed; the applicant be issued the Certificate of Results so he can proceed to the next step in the CSS; and a third-party consultant, agreed to by the parties, be hired to produce a full report to establish a revised vision requirement. It should be noted that no request for lost wages was made. The respondents did not expressly object to the amendment of the remedy although they did highlight that the remedy appeared to be a moving target.

110Notwithstanding the respondents’ concern, I did not understand the respondents to be claiming any prejudice. Nor can I conclude there has been any prejudice. Any effort to consider an individualized test appears to be only in the formative stage. In the circumstances, I see no reason not to consider the amendment.

Injury to Dignity, Feelings and Self-respect

111In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paragraphs 52-54, the Tribunal canvassed the recent history of awards for injury to dignity, feelings and self-respect, stating:

(…)The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53, at paras. 34-38.

112In this case, the applicant justifies his request for $15,000.00 relying on the fact that he faced a barrier which prevented him from pursuing his career goal and then received no response to his inquiry for approximately a year. In testifying about the impact on him, the applicant spoke convincingly of his strong interest in making a bigger contribution to the community, his related desire to become a police officer and the frustration he felt when he was prevented from pursuing that aspiration after working for many years as an auxiliary officer. In support of his position, the applicant relied on various awards including Sandford v. Koop, 2005 HRTO 53, and Cremona v. Wardair Canada Ltd. (No. 2) (1991), 1991 CanLII 13115 (CHRT), 16 C.H.R.R. D/32. The applicant also stated that the proposed amount was not out of line with recent cases at the Tribunal.

113The respondents did not challenge the applicant’s evidence on impact in the hearing and acknowledged that they recognize the importance of the issue to the applicant. However, they suggested that the figure proposed was high (as that amount has been awarded by the Tribunal in instances where there is psychological trauma and loss of employment such as in Simpson v. JB & M Walker, 2010 HRTO 819. As a more analogous comparator, the respondent cites Qureshi v. G4S Security Services, 2009 HRTO 409, where the Tribunal awarded $5,000.00 for rejection from a recruitment process.

114I have considered the parties’ submissions and the more recent comparators in the Tribunal’s case law. For example, in Davis v. Toronto (City), 2011 HRTO 806, the Tribunal awarded $10,000.00 for discrimination in hiring based in part because of a disability or perceived disability.

115Obviously, while comparators must be considered, each case must also be decided on its own facts. In the circumstances of this case and having regard to the applicant’s evidence which was unchallenged and the comparators in the Tribunal’s case law cited by the parties and otherwise, I find $8,000.00 is the appropriate amount to compensate the applicant for the intrinsic value of the infringement of his rights. In determining this amount, I have considered that although the applicant was denied the ability to continue at a pre-screening stage, the barrier he faced prevented him from applying to an occupation throughout most of Ontario, and although he submitted additional medical information, there was no communication back to him for a lengthy period of time including any follow-up to request additional information or otherwise. Further, I rely on his own evidence of impact which was unchallenged.

Other Individual Remedies Sought by Applicant

116The applicant also sought a number of other individual remedies; namely the issuance of a certificate of results so that he can proceed to the next step in the Constable Selection System and ensure that the delay in the receipt of that certificate is not reflected in the ranking that may be assigned to him should he be hired by a police service and pass his probation.

117The respondents argued against each of these remedies, stating that it was premature for the applicant to be issued a certificate of results because at the time of the hearing, the PREP test had expired and it is speculative to make any order about ranking. The respondents highlight that there are many other requirements that the applicant would have to pass before his ranking would be applicable including a medical and psychiatric evaluation, a three-month course at the Ontario Police College and a probationary period, all of which he would have to pass.

118In determining what other individual remedy is warranted, the purpose is to put the applicant in the position he would have been in had the violation not occurred. Applying this principle and having regard to the evidence and my finding of discrimination, I find it is appropriate to order that the applicant be issued a certificate of results (“COR”) so he can proceed to the next step in the CSS.

119The applicant was denied the COR because of a standard which I have found to be discriminatory. There is no evidence to suggest that had the depth perception standard not been applied to him, he would not have been issued a certificate of results. While the applicant obtained a phoria value outside the range, he was not referred because of it. Moreover, to the extent this was an oversight, the applicant obtained additional medical evidence in respect of his vision in Dr. Ing’s report which provided the opinion that his depth perception was “quite adequate” for police work and that he had no double vision (which I understand is a concern behind the phoria value). While I heard some evidence that the opinion expressed about the absence of double vision may have based on the applicant’s self-report, which Dr. Hovis suggested could be unreliable, he also agreed that given that the applicant had had strabismus since he was young, double vision was less likely to be a concern. Having regard to the all the evidence including the applicant’s driving experience, I am not satisfied that the speculation about double vision is a reason to deny the COR as I cannot conclude it is well-founded.

120Notably, the only reason advanced by the respondents as to why the COR should not be issued is the expiry of the PREP test. While I have considered this, as well as the fact that shortly after the hearing concluded, the other prescreening tests expired, I do not find that the expiry of prescreening tests alone is a sufficient reason to deny the issuance of the COR. I am mindful that this is only the first hurdle in a series of steps toward becoming a police constable and that the applicant will be subject to ongoing review and evaluation of his skills and abilities should he obtain a job offer. In these circumstances, I am satisfied that it is appropriate to issue a COR effective the date of this decision. The related expiry dates should be revised to reflect amended dates consistent with the period the COR would have been valid had the applicant not been discriminated against by the application of the stereo acuity standard on September 11, 2007.

121I decline to make any order regarding the applicant’s ranking should he be successful in his efforts to become a police constable. Having regard to the number of steps required, I agree with the respondents that it is speculative to make such an order.

Individualized Assessment/Remedy for Future Compliance

122I now turn to the issue of whether or not the Tribunal should make an order under section 45.2(1) to ensure compliance with the Code. In this respect the applicant sought both an order that the standard be removed but also that a third-party consultant be retained to develop a revised standard. In oral submissions, in explaining the rationale for some kind of oversight, the applicant raised concerns that a revised standard could incorporate other elements such as an uncorrected acuity in each eye standard or a phoria value which could lead to a similar discriminatory effect. The respondents objected to any remedy for future compliance suggesting that its offer of an individualized assessment of the applicant was sufficient.

123In the circumstances, I find that it is appropriate to order that the respondents cease relying on the standard as presently drafted. While the respondents argue against such a remedy, their position was premised on their view that it was the applicant’s volunteer experience that placed him in a different category from other persons with strabismus and/or other persons who do not meet the stereo acuity standard. While the applicant’s experience highlights the difficulty with the standard, I find that the evidence of the experts went beyond that of finding that the applicant’s personal circumstances were an anomaly. Even the respondents’ witness, Dr. Hovis, suggested that an individual with strabismus who fails the stereo acuity test may still have adequate depth perception. In addition, Dr. Hovis relied predominantly on the Bauer study to justify the continuation of the standard; a study which revealed that 7/10 drivers with strabismus had no difficulties with slalom driving (even assuming its relevant). In the face of this evidence, a remedy specific to the applicant alone would not be adequate to promote compliance with the Code.

124I have considered the applicant’s request to have a role in selecting a third-party consultant and the requirement that the consultant produce a full report which will establish the revised vision requirement consistent with the Tribunal’s findings. The respondents object to this request, suggesting that it is inappropriate for the Tribunal to get involved in the details of such a process

125I agree with the respondents. I have determined that the standard is discriminatory and cannot be relied on. Any revision of the standard should be in accordance with the reasoning in this decision. While I acknowledge the applicant’s interest in the issue, I am not convinced that it is necessary that the applicant play a role in any future development of a standard. Further, as this Application was about the depth perception standard, I do not find it appropriate to make any other order that pertains to the revision of any other standards applicable to vision.

ORDER

126In the result I order:

1. That the respondents pay the applicant monetary compensation in the amount of $8,000.00.

b. That the respondent Ontario Provincial Police issue a Certificate of Results to the applicant effective the date of this decision. The related expiry date[s] are to be revised to reflect amended dates consistent with the period the COR would have been valid had the applicant not been discriminated against by the application of the stereo acuity standard on September 11, 2007. I will remain seized in the event there is a dispute about the expiry dates.

c. Pre-judgment and post-judgment interest on the monetary compensation. Pre-judgment interest to be calculated on the sum of $8000.00 starting from September 11, 2007, and post-judgment interest to run starting 30 days from the date of this decision.

d. The respondents cease relying on the standard of “stereo acuity of 80 seconds of arc or better” as a vision requirement in the Constable Selection System.