HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Thomas Corrigan, Terence Finnigan, Larry McPhail, Larry Francis, Ronald Baron, George Williams, William Reiach, Paul Hunter, John Wilcox and James Donald
Applicants
-and-
Corporation of the City of Mississauga and Mississauga Fire Fighters’ Association Local 1212
Respondents
-and-
Mississauga Fire Fighters’ Association
Intervenor
DECISION
Adjudicator: David A. Wright
Date: July 26, 2013
Citation: 2013 HRTO 1313
Indexed as: Corrigan v. Mississauga (City)
APPEARANCES
Thomas Corrigan, Terence Finnigan, Larry McPhail, Larry Francis, Ronald Baron, George Williams, William Reiach, Paul Hunter, John Wilcox and James Donald, Applicants
Julian Roy and Asha James, Counsel
The Corporation of the City of Mississauga, Respondent
Lauri A. Reesor and Graham J. Walsh, Counsel
Mississauga Professional Fire Fighters’ Association, Intervenor (in the Applications of McPhail and Hunter), Respondent (in all other Applications)
Howard Goldblatt and Heather Ann McConnell, Counsel
INTRODUCTION
1This is another in a series of decisions dealing with claims that mandatory retirement of firefighters at age 60 violates the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The issue is whether these consolidated Applications alleging age discrimination, brought by a group of firefighters from Mississauga who had to retire from suppression firefighting at or after the age of 60, should be dismissed on the basis that they have no reasonable prospect of success.
2Until about 2005, the City of Mississauga (the “City”) required firefighters to retire at 60. From about 2005 to 2011, it permitted continued work in suppression firefighting past the age of 60 if the firefighter provided a medical note that he or she was “fit”. Following this Tribunal’s Decision in Espey v. London (City), 2008 HRTO 412, and the passage of the Fire Protection and Prevention Amendment Act, 2011, S.O. 2011, c. 13, (“Bill 181”) the City and the Mississauga Fire Fighters’ Association Local 1212 (the “Association”) agreed that mandatory retirement at age 60 would be incorporated into the parties’ collective agreement. The City also applied a policy of mandatory retirement to Platoon Chiefs outside the bargaining unit.
3When provided notice that they would be required to retire, the applicants retained counsel, who asked for “individual exceptions” for them, offering in general terms to comply with reasonable physical and medical testing rationally connected to their job duties. The respondent offered them non-suppression positions, which they declined, as they wanted to be accommodated within suppression at equivalent rank and pay.
4The applicants do not challenge the inclusion of a mandatory retirement provision in the parties’ collective agreement, as such a challenge is now foreclosed by the passage of Bill 181. They argue, relying upon paras. 98-100 of Espey, that the respondents were required to consider their request to receive an individual exception from mandatory retirement and work with them to develop a testing regime. They submit that this matter should go forward to a full hearing because the respondents failed to engage in a testing process to determine whether an exception should apply to them, and pre-emptively decided that they would not be accommodated in suppression positions. They have filed an expert report from cardiologists that, among other things, contests the medical basis for the finding in Espey that mandatory retirement at age 60 is a bona fide occupational requirement.
FACTUAL BACKGROUND
5McPhail and Hunter are Platoon Chiefs who were not represented by the Association at the time of their retirement. The other applicants were members of the Association. The applicants’ contention that Espey and Bill 181 do not apply to the Platoon Chiefs is addressed at paras. 44-48, below.
6Until 2005 or 2006, Mississauga firefighters employed in fire suppression were required to retire at age 60, and from then until 2011, extensions to this date were often granted. Although the City and Association disagree about whether the collective agreement required mandatory retirement pre-2010, and whether the Association agreed with the practice of granting extensions, these differences of opinion are not relevant to this decision.
The 2010 Collective Agreement
7As of 2010, the Collective Agreement was amended to include the following text:
The parties agree to maintain and enforce the mandatory retirement age of 60 for suppression and suppression training employees.
Those employees who wish to work past age 60 must pass the annual medical examinations and physical testing required by the City.
The November 2010 Association Grievance
8Following ratification of the Memorandum of Settlement of the Collective Agreement on April 14, 2010, the City continued to grant extensions of retirement dates. The Association filed a grievance on November 16, 2010 that reads as follows:
This letter will serve as notification of the initiation of a grievance filed by the Mississauga Fire Fighters Association, IAFF Local 1212. The Association charges that the Corporation has violated the Collective Agreement/Memorandum of Settlement signed Friday March 26, 2010, and ratified by the City on April 14, 2010.
The grievance is a result of the improper post age 60 employment extensions granted to certain employees since the signing of the Memorandum of Settlement and is now formally filed after having been discussed extensively with the Fire Department and City negotiating committee with no satisfactory resolve.
The Association brings this matter forward at Stage 5 of the Grievance Procedure.
Issues around and impacting this matter include;
That in good faith, while bargaining, the Fire Chief indicated the Kitchener Fire Department “Age 60 Test” was being successfully utilized. Later it was found there was no testing of the sort being conducted by the Kitchener FD;
It is the interpretation of the Association that the language signed means the test would not violate a members human rights and would satisfy a Suppression Fire Fighter, Fire Officer or Suppression Training Officer’s post age 60 BFOR;
The Association and City are both aware of the precedent setting Human Rights Tribunal of Ontario ruling that directly refers to this matter;
The Association believes that such tests do not exist and that the delay by the City is proof thereof;
The untimely and improper handling of employment extensions granted contrary to the agreement and outside of a joint agreement with the Association has had far reaching ramifications to other employees that must be addressed.
Therefore the Association requires the following as redress:
That the City acknowledge these extensions granted do not meet the terms of the Collective Agreement (Memorandum of Settlement);
That Promotions and job vacancies that ought to have been created and filled, effective the dates the improper extensions were granted, are filled by persons who were next to fill those spots; those and all subsequent promotions, move-ups etc. be retroactively adjusted in pay and seniority to those and subsequent dates as the Association has proposed;
That the City acknowledge their frustration in the fact that there is no ‘appropriate’ physical test, and an agreeable interim resolve be formulated to curtail these post age 60 employment extensions until such time as alternate collective agreement language is negotiated or imposed;
Any other remedy that the Association deems appropriate; and
Any remedy that a Board of Arbitration would deem just in the circumstance.
Bill 181
9Bill 181 received royal assent on June 1, 2011. As of that date, it added the following provisions to the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”), that permit mandatory retirement for suppression firefighters notwithstanding the Code, and provide that firefighters not be required to retire if they can be accommodated without undue hardship:
53.1 (1) This section applies to a firefighter only if the firefighter is regularly assigned to fire suppression duties.
(2) A collective agreement may contain a provision requiring firefighters to retire at a specified age of 60 or over and, if it does, a firefighter subject to the agreement shall, subject to subsection (4), retire at the specified age.
(3) Subsection (2) applies to collective agreements that are in operation on the day section 2 of the Fire Protection and Prevention Amendment Act, 2011 comes into force and to collective agreements that come into force after that day.
(4) A firefighter shall not be required to retire if the firefighter can be accommodated without undue hardship, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
(5) This section applies despite the Human Rights Code.
10Bill 181 provided that as of June 1, 2013, firefighter collective agreements that did not have a mandatory retirement clause would be deemed to require retirement at age 60, through s. 53.1 (3.1) that took effect as of that date:
(3.1) If a collective agreement does not contain a provision requiring firefighters to retire at a specified age or if it contains a provision requiring firefighters to retire at an age under 60, the agreement is deemed to contain a provision requiring firefighters to retire at the age of 60 and a firefighter subject to the agreement shall, subject to subsection (4), retire at that age.
11In relation to Bill 181, the City’s Response argues that the only accommodation required by s. 53.1 (4) is in a non-suppression position. It cites various statements in the Legislature in support of this position.
The Letter of Understanding
12On June 15, 2011, the Association and the City signed a Letter of Understanding that reads in relevant part as follows:
In the matter of implementation of Bill 181 and the Associations [sic] Improper Employment Extension Grievance;
The Parties Agree to the following;
The scope of this matter between the Association and the City includes and is limited to Suppression employees and Suppression Training Employees. This shall include the Collective Agreement positions of; Firefighter (all class levels), Suppression Captain, Suppression District Chief and Suppression Training officer, and;
The parties agree that all post age 60 employment extensions will end September 30, 2011, and,
The parties agree that notice will be given to all employees that articulates that for affected employees at or over age 60, they will be required to exercise an option under Policy 1-03 dated 93/09/16, prior to the date of September 30, 2011, and,
Members affected by the end of post 60 employment extensions will be permitted to defer all or part of their sick leave and other payouts from their retirement date in 2011. They may elect to receive this pay in the 2012 calendar year and will be paid out by the second pay in 2012. The payout rate will be at the rate of pay in effect on September 30, 2011, and,
Effective October 1, 2011 or at the date of the next two captains vacancies, the next two Acting Captains who were eligible to be promoted to the position of Suppression Captain as of the list in effect December 31, 2010 will be promoted, and,
Each of these promoted Captains will have their promotion date for seniority purposes set at August 1, 2010 (this is the first of the month following the date of employment extensions following the 2010 MOS), and,
The Association agrees to withdraw the improper Employment Extension grievance.
13On June 21, 2011 the Fire Chief sent the following memorandum, with the subject “Bill 181-Mandatory Age 60 Retirement” to all personnel in the Fire Department:
On June 1, 2011 The Ontario Government passed Bill 181, an Act to amend the Fire Protection and Prevention Act which sets mandatory retirement for firefighters at age 60. The impact of this legislation on our organization is significant as we will lose a considerable number of our most experienced staff.
Although I will be directly contacting each affected employee to discuss the contents of the Letter of Understanding reached with the Association, I thought that all personnel would be interested in the following highlights:
Those employees affected by the Mandatory Age 60 include both Suppression employees and Suppression Training employees.
All of our current post age 60 employment extensions will end on September 30, 2011.
Affected employees will be required to exercise an option under policy #1-03 (93/09/16) prior to September 30, 2011.
As per the normal OMERS process, we will continue to consider that an employee’s retirement date will be the end of the month of their 60th birthday.
In accordance with the existing MFES Retirement Policy, employees requesting accommodation will be accommodated inside MFES where possible. If no suitable position is available in MFES, an accommodation search will be conducted throughout the City.
The Exchange of Lawyers’ Letters and the Offer of Positions
14On September 26, 2011, counsel for the applicants wrote to the City Manager and Chief Administrative Officer as follows on behalf of Messrs. Baron, Reiach, Finnigan, Wilcox and Williams:
Further to the June 21, 2011 memo prepared by Fire Chief John McDougall, please accept this letter as a formal request on behalf of the above noted firefighters that an individual exception is granted to the mandatory retirement provision for each of them. Furthermore, we are requesting that the accommodation be provided as a fire suppression firefighter.
All of our clients are fully prepared to comply with reasonable physical and medical testing that is rationally connected to their current job duties.
We would be pleased to discuss an appropriate testing protocol with you. We look forward to hearing from you on this matter.
15Counsel sent a separate letter on behalf of Mr. MacPhail and Mr. Hunter, taking the position that their positions as Platoon Chiefs were not covered by the legislation, and also making the same request for accommodation.
16The City sent Messrs. Baron, Reaich, Finnigan, Wilcox, and Williams each an offer of accommodation as a transit operator, dated September 29, 2011. On October 5, 2011 the City Solicitor wrote to counsel for the applicants as follows in relation to the bargaining unit employees:
Your correspondence addresses a matter arising out of the employees’ employment with the City which is governed by a Collective Agreement with the Firefighters Association, Local 1212 (the “Association”). Accordingly, this matter should be dealt with directly through the Association under the provisions of the Collective Agreement.
The City will consider the employees’ individual requests to be accommodated with continued employment outside fire suppression beyond age 60 and will advise the employees of their options.
17The response to counsel in relation to Messrs. McPhail and Hunter read in relevant part as follows:
The City will consider Mr. McPhail’s and Mr. Hunter’s individual requests to be accommodated with continued employment outside fire suppression beyond age 60 and will advise them directly of their options.
18Shortly after this exchange of correspondence, each of the bargaining unit members listed in counsel’s letter respectfully declined the transit operator position by e-mail because it was not equivalent in rank and salary to what they were offered.
19Mr. Donald had asked for a short extension of retirement date, but made no request for an accommodated position. He was offered the position of transit operator, but respectfully declined.
20Mr. Corrigan retired in 2012. Prior to his retirement, counsel for the applicants sent a similar letter to that sent on behalf of the others, Mr. Corrigan was offered a position as a Communications Officer, and he declined.
21Mr. Francis retired in 2013. Prior to his retirement, counsel for the applicants sent a similar letter to that sent on behalf of the others, Mr. Francis was offered a position as a Transit Operator, and he declined but said he was open to another position.
THE APPLICANTS’ THEORY OF THE CASE
22The applicants do not challenge the requirement of mandatory retirement for firefighters at age 60 in the collective agreement, nor in Bill 181. They argue, however, that the respondents were required to respond to counsel’s request by looking for individual testing to determine whether the applicants should be given an individual exception. They argue that the respondents failed in their duty to accommodate by not doing so or engaging in a process of discussion of possible testing in response to counsel’s letter. In support of this argument, they rely on paragraphs 98-100 of Espey, which provide for the possibility of an individual exception to mandatory retirement 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.
23The applicants’ principal argument is that even where mandatory retirement in a collective agreement is valid, an employer must investigate and institute a testing protocol following a request such as that made by counsel in this case. They have produced an expert report that contests the findings in Espey that there is no method of testing for risk of heart disease currently available that is better than age alone, and takes issue with the expert evidence relied upon in that case. The applicants argue that if the employer and the Association had followed up properly on the request for accommodation made by counsel on the employees’ behalf, they would have found that they could do the job with a low or negligible risk of cardiac events. If the case is allowed to go forward, they will each do testing of the kind now recommended by their expert that will prove that, had the other parties properly followed up on counsel’s request, it would have been shown that they could be accommodated by continuing to work in suppression.
24The difficulty with the applicants’ argument, however, is that para. 100 of Espey, and the duty to accommodate in s. 53.1(4), do not impose an obligation on an employer to develop a testing regime for each employee, even on request. The basis of the decision in Espey and s. 53.1(2) is that mandatory retirement is justified as a bona fide occupational requirement (“BFOR”) and that an employer can require employees to retire at age 60. Espey left open the possibility of accommodation in suppression where an individual presented particular medical evidence to the employer of his or her extremely low or negligible risk of cardiac events. The applicants did not do that, and neither Espey nor s. 53.1(4) requires an employer or association to research and engage in a search for individual testing protocols each time an employee makes a general request. Detailed reasons for this conclusion follow.
RULE 19A
25This is a summary hearing ordered under Rule 19A following the respondents’ Request, that was held on January 21 and April 10, 2013. Rule 19A.1 reads as follows:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
26In Dabic v. Windsor Police Service, 2010 HRTO 1994, the leading case on summary hearings, the Tribunal stated as follows:
A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
27The Tribunal has emphasized that the standard of reasonable prospect of success is different from the more formalistic analysis of whether there is a prima facie case. As stated in Gill v. Hamilton Professional Fire Fighters’ Association, 2012 HRTO 1506 at para. 23:
The standard of “reasonable prospect of success” does not involve the formalistic application of burdens of proof, but rather a global evaluation of the case, in context, as each party intends to present it. It involves an analysis of the evidence that will be called by each party in light of the full context of the case and the applicable legal tests: Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. For an application to proceed, there must be a basis beyond speculation and allegations: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389. An applicant is required to articulate and point to evidence that would form a basis for the Application to move forward in the Tribunal process. Where allegations have no reasonable prospect of success in all the circumstances, an Application should be dismissed following a summary hearing; a theoretical chance of success is not enough.
ESPEY
28The issue in Espey was whether the requirement in the relevant collective agreement that suppression firefighters retire at age 60 was justified as a BFOR, based upon the risk of cardiac events for firefighters. Applying the framework established in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), the Tribunal concluded that the respondents had 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. I noted that this was a “complex case with competing values” and that the “Tribunal must carefully balance the various relevant factors in the context of the evidence”.
29Espey engaged in an extensive analysis of the relevant factors, principally the safety risks of firefighting, the possibility of individual testing, and the fact that the mandatory retirement provision had been agreed to between the bargaining agent and the employer: paras. 77-100. The conclusions and basis for the analysis were summarized as follows at para. 101:
I 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.
30In particular, Espey noted the difference between risk assessment of cardiac events and determining whether someone has the capacity to do an existing job. I noted that any method of risk analysis might have human rights consequences, stating as follows at paras. 89-91:
I 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.
Different 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.
Even 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”.
31Espey determined that a general requirement in a collective agreement that firefighters retire at 60 is a BFOR. This analysis took place in the entire context of the terms and conditions of employment in fire services, including the availability of unreduced pensions, avoiding prima facie disability discrimination at earlier ages, and the agreement of associations to the relevant trade-offs as part of collective bargaining.
32The importance of certainty and the parties’ ability to rely upon Espey was emphasized in Gill at para. 24:
This Tribunal’s approach to decision making is based on consistent development and application of principles. While there is no formal doctrine of stare decisis in administrative tribunals, the HRTO strives to develop and maintain a coherent body of jurisprudence, allowing those affected by its decisions to organize their affairs based on what has been established and decided.
33At para. 31, the Tribunal held:
Applying these principles in the context of the HRTO, in my view there is a higher onus than the applicant suggests on a party seeking to relitigate the analysis and findings in a recent case in a highly similar context. A party, whether applicant or respondent, seeking to challenge such findings must put forward evidence or a basis for analysis early in the Application process that establishes a reasonable basis, beyond mere speculation, that the result would be different in this case. Where principles have been established, parties should be required to put their best foot forward and justify why the Tribunal should proceed to hear detailed evidence and analysis on an issue in light of the previous jurisprudence. This ensures fairness to both sides and a litigation process that is proportionate to the issues before the Tribunal, avoiding spending multiple days of hearing on issues that have been decided and analyzed.
34Paragraphs 98-100 of Espey discussed the issue of individual exceptions within a regime of mandatory retirement, an approach reflected in s. 53.1 (4) of the FPPA. They read as follows:
This 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.
This 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.
However, 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 [University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital general de Montréal, 2007 SCC 4] 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.
[emphasis added]
ANALYSIS
35In my view, para. 100 and s. 53.1(4) do not provide, as the applicants suggest, that there is an obligation on an employer, on request, to develop and implement a testing regime for a group of firefighters or an individual. Rather, this paragraph contemplates the possibility that an individual who comes forward with medical evidence of an unusually low risk despite their age can request an exception from mandatory retirement. The law also suggests a duty to accommodate in positions outside fire suppression.
36The applicants’ argument would make the rest of the reasoning in Espey and the codification of mandatory retirement in the FPPA meaningless, turning the exception into the rule. Espey decided that the Code permits an employer and association to require retirement from suppression firefighting at age 60 without individual testing. Section 53.1 of the FPPA goes further, making mandatory retirement provisions obligatory, and providing that they apply notwithstanding the Code. If investigation of testing were required upon request as the applicants suggest, it would be the equivalent of reading mandatory retirement out of the agreement and the legislation.
37The requests made by the applicants in this case do not fall within what was contemplated by para. 100 of Espey. The applicants did not ask for an exception based on low or negligible risk of cardiac events. Rather, they made a general request for the establishment of a testing regime. When they made the request, they presented no evidence, and made no suggestion, that they could get evidence or show an exceptionally low risk of cardiac events despite their age. There is no obligation on the employer and association to investigate accommodation within suppression in such circumstances.
38Nor do I agree with the applicants that the nature of the response to the lawyers’ letter on behalf of the applicants or lack of it by the City or the Association violated the procedural duty to accommodate by foreclosing accommodation as set out in para. 100. It is true that the responses talked about accommodation “outside fire suppression” when they asked to be accommodated within suppression. A response that fully took para. 100 into account might well have been better drafted had it invited the applicants to provide evidence of whether they had a “low or negligible risk” of cardiac events rather than appearing to foreclose the possibility of accommodation within suppression.
39However, this letter must read in light of what the applicants asked for and in the context of Espey and Bill 181. Espey concluded that there is no current test that demonstrates individual cardiac risk in firefighters. It was clear and not contested that the City had previously engaged in a process of looking for such a test through discussions about the Association grievance and had reached the opinion that there was none. Applicant counsel’s letter did not suggest a particular testing regime, indicate that any or all of the applicants had medical evidence or a belief that they had a low or negligible risk of cardiac events, or propose medical testing for this purpose. All applicants refused the accommodated positions that were offered outside suppression and did not make alternative suggestions. Given that the applicants requested a general testing regime and did not follow up, it is not surprising or improper that the response to the letter did not treat it as a request for an exception based on unusual or particular medical circumstances.
40The applicants did not seek accommodation in a suppression position based on an extremely low or negligible risk of cardiac events. The failure of the City to specifically allude to this possibility in the exchange of lawyers’ letters cannot found a breach of either the procedural or substantive duty to accommodate, because there is no obligation to engage in discussions in the absence of a request for an exemption based on specific evidence of a low or negligible risk of cardiac events and evidence or a specific proposal about how to do that. Moreover, the applicants have still not presented any evidence that they had the kind of exceptional health status that was contemplated for a duty to accommodate within suppression, which is what is addressed in the paragraphs in Espey they rely upon.
41The applicants have filed an expert report that suggests that there are better ways to manage the risks of heart disease in firefighting than relying on age alone, that there is now a better understanding than when Espey was decided about why firefighters have a high risk of on-duty cardiovascular events. It argues that the best indicator of cardiac risk is previous cardiovascular disease, and that general risk analysis and testing that have been used in the general population can be applied to firefighters, contrary to what was decided in Espey. The applicants argue that in light of this expert evidence, their Applications “sail through” the Rule 19A summary hearing standard and should be sent to a full hearing. They acknowledge there may be disputes about whether this evidence should change the BFOR analysis from Espey, but they say that given counsel’s request for an exception and the likely dispute in the expert evidence about whether the proposed testing can accurately show low or minimal risk of cardiac events, the matter should go forward to a full hearing. They do not, however, and cannot in light of Bill 181, suggest that in general, there is no BFOR, and they do not argue that this evidence has any relevance except with regard to the request for an individual exception.
42Had the applicants proposed the specific testing they now rely upon at the time of the lawyers’ letters, or undergone it and presented the results to the employer and Association, the application of para. 100 of Espey to these Applications might be different. However, in light of that case and Bill 181, workplace parties in fire services in Ontario are entitled to require mandatory retirement at age 60, subject to an obligation to accommodate. This includes the obligation to look for non-suppression positions, and, if an employee presents evidence or a basis to believe he or she has a low or negligible risk of cardiac events, to consider whether the employee can be accommodated within suppression. Employers and associations are not required to engage in a search for possible testing methods each time an employee makes a general request.
PLATOON CHIEFS
43Finally, I address the contention on behalf of Mr. McPhail and Mr. Hunter that the analysis of their situation should be different because, in Mississauga, Platoon Chiefs are not members of the bargaining unit and are not subject to the collective agreement. They submit that this has two consequences: first, that s. 53.1 of the FPPA has no effect on the requirement that they retire at age 60, and second, that the Espey analysis does not apply to them because the position of Platoon Chief is different in Mississauga than in London and does not involve incident command.
44I need only deal with the second argument. Even assuming that Bill 181 does not apply to the Platoon Chiefs, their Applications have no reasonable prospect of success in light of Espey and the interpretation of para. 100 above.
45Mr. Espey was a District Chief, who has incident command duties, as does the Platoon Chief in London: see paras. 15-22. Espey held that avoiding cardiac incidents for incident commanders is critical, and that the same analysis applies to incident commanders as others. At para. 77, the Tribunal held:
Suppression 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”.
46Counsel for the applicants made the assertion in oral submissions that Platoon Chiefs in Mississauga, unlike those in London, are not involved in incident command, but this is contradicted by the very job description upon which they rely:
Under the direction of the Deputy Fire Chief the successful candidates will manage, supervise and administer an assigned platoon to ensure efficient and effective operations, overall activities and programs for all firefighting and other responses. Duties include coordinating and controlling emergency response operations; coordinating and controlling all emergency incident operations; conducting investigations of fires; ensuring the proper use of the incident command and accountability systems by all platoon personnel; responsible for the appropriate deployment of all personnel, equipment and apparatus for his/her platoon; coordinating and controlling the issuing of protective equipment and uniforms to platoon personnel; participating in recruitment, selection and promotional committee; supervising work activities; ensuring rules and regulations, policies and procedures are upheld and taking disciplinary action in accordance with policy; managing day to day labour relations matters; development for assigned staff; coordinating, supervising, participating in, and monitoring training programs; coordinating, scheduling, authorizing overtime work, maintaining attendance reports and approving Time and Labour records; carrying out assigned responsibilities outlined in the Attendance Management Program; performing the duties of a supervisor as prescribed in the Occupational Health and Safety Act; developing, recommending and administering the annual budget for the platoon; evaluating, researching and recommending program and procedure improvements relating to operations and equipment; managing and implementing assigned programs; participating in the development and revision of rules and regulation [sic], policies, standard operating procedures, long range plans and programs; providing leadership in the implementation of policies and monitors the effectiveness of same; conducting administrative tasks as directed by the Deputy Fire Chief; acts for the Deputy Fire Chief or Fire Chief as required. Performs other duties as assigned.
[emphasis added]
47There is no statement of alleged facts in either the original or amended Applications that supports the suggestion that contrary to the job description, Platoon Chiefs in Mississauga are not involved in responding to emergencies. The applicants focus on the fact that they are classified as management, but that is not relevant to the issue of whether they play a role in incident command during emergencies. This led to the reasoning in Espey that mandatory retirement is justified for all suppression firefighters. There is no evidence that suggests that the finding with regard to incident commanders would be different in this case.
CONCLUSION
48In summary, the Applications have no reasonable prospect of success. The applicants rely upon the possibility of individual exceptions in para. 100 of Espey. To rely on this exception, a firefighter over 60 seeking an exception must, at the very least, present to the employer as part of an accommodation request evidence or a basis to believe that he or she has a low or negligible risk of cardiac events in order to trigger the process contemplated there. The applicants did not do so. The reasoning in Espey that mandatory retirement is a BFOR applies to anyone involved in fire suppression, including incident commanders. The Platoon Chiefs have relied on a job description that confirms they are involved in coordinating and controlling emergency incidents and there is no evidence or suggestion in the pleadings that they have no involvement in responding to emergencies. Accordingly, the same reasoning applies to them as to the bargaining unit members.
49For all these reasons, the Applications are dismissed on the basis they have no reasonable prospect of success.
Dated at Toronto, this 26th day of July, 2013.
“Signed by”
David A. Wright
Associate Chair