COURT FILE NO.: 472/05

DATE: 20060621

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, EPSTEIN AND SWINTON JJ.

B E T W E E N:

ROBERT BALDASARO

Applicant

• and -

ONTARIO HUMAN RIGHTS COMMISSION AND THE CITY OF TORONTO

Respondents

Scott Simser, for the Applicant

Raj Dhir, for the Respondent Commission

Heather Crisp, for the Respondent City of Toronto

HEARD at Toronto: April 28, 2006

SWINTON J.:

1The applicant Robert Baldasaro has brought an application for judicial review seeking an order to quash the decisions of the Ontario Human Rights Commission dated March 25, 2003 and October 27, 2004 not to refer his complaint against the City of Toronto to the Human Rights Tribunal of Ontario. The issue in this application is whether the Commission’s decision not to refer his complaint was patently unreasonable.

Factual Background

2The applicant has a moderate hearing loss in his left ear when he is not wearing a hearing aid. In 1999, the City of Toronto was hiring new firefighters, and he applied for a position.

3Because firefighting requires a high level of physical fitness, the City uses fitness standards developed by the National Fire Protection Association (“NFPA”) to assess candidates. The NFPA standards were developed by an international committee composed of fire chiefs, firefighter unions, medical experts, and other groups associated with firefighting. The standards require that candidates have their hearing tested without the use of a hearing aid. While perfect test results are not required, if there is a notable hearing loss in one or both ears, a case by case evaluation of the candidate’s ability to perform the essential duties of the position is required.

4In a letter dated September 13, 1999, the applicant was conditionally offered the position of Probationary Firefighter. The letter stated, among other things, that he must undergo a York University Occupation Specific Vision, Hearing and Fitness Test.

5Dr. Norman Gledhill and staff at the York University fitness test centre assess candidates against the standards on behalf of the City. Candidates sign a declaration that they are not wearing a hearing aid when they take the hearing test.

6The applicant’s hearing had already been tested in March 1999 at York University. At that time, he did not remove his hearing aid, and his test results showed normal hearing. However, when he was tested again in September 1999, he removed his hearing aid, and his hearing did not meet the standards. The City then asked him to have the results confirmed by a specialist of his choosing.

7The applicant’s audiologist tested his hearing both with and without a hearing aid. When he did not wear a hearing aid, his hearing did not meet the standards. His audiologist reported that he had moderate to severe mixed hearing loss in his left ear, but she expressed the opinion that the applicant could safely and effectively perform the duties of a firefighter.

8The City then obtained a report from Donald Hood, an audiologist with expertise in occupational hearing. After reviewing the test results and information about the applicant’s hearing aid, Dr. Hood concluded that due to the significant difference in hearing acuity between the applicant’s left and right ears, the applicant would not be able to locate the source of sound in a fire situation. In addition, the applicant would have difficulty discriminating speech in a fire situation due to background noise. He therefore was of the opinion that the applicant could not achieve safe and effective hearing during firefighting, either with or without a hearing aid. When asked whether he needed to examine the applicant in person in order to provide an evaluation, Dr. Hood said that he did not need to do so and could provide a proper evaluation on the material supplied to him.

9The applicant filed a complaint with the Ontario Human Rights Commission, claiming that he had been discriminated against on the basis of disability.

The Statutory Background

10A candidate for a job who is unable to meet an otherwise bona fide occupational standard because of a personal characteristic such as disability should be individually assessed to determine whether he or she can perform the essential duties of the job with accommodation (Human Rights Code, R.S.O. 1990, c. H.19, as amended, ss. 5(1), 17). More precisely, the Supreme Court of Canada stated in British Columbia (Public Service Employees Relations Commission) v. British Columbia Government and Service Employees Union (B.C.G.S.E.U.), 1999 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) at para. 54:

Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR [bona fide occupational requirement]. An employer may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate the individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

11Pursuant to s. 17(2) of the Ontario Code, the factors to be considered in determining undue hardship are the cost, outside sources of funding, if any, and health and safety requirements, if any.

The Commission’s Decisions

12The applicant’s complaint was the subject of an investigation by the Commission. A Case Analysis Report was prepared, which was the subject of comment by the applicant.

13Pursuant to s. 36(1) of the Code, the Commission may refer a complaint to the Tribunal where there has been no settlement and where “it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry”.

14On March 25, 2003, the Commission issued a decision pursuant to s. 36 of the Code stating that it would not refer the applicant’s complaint to the Tribunal. It gave the following reasons:

1. The evidence indicates that the respondent’s hearing standard for firefighters is a reasonable and bona fide occupational requirement related to the safe and effective performance of the essential duties of the job.

2. The evidence indicates that the respondent individually assessed the complainant, and did not employ the complainant because he did not meet the required standards.

15The applicant requested a reconsideration pursuant to s. 37 of the Code and made further submissions. In a decision dated October 27, 2004, the Commission upheld the original decision for the following reasons:

1. The Commission remains of the view that the evidence indicates that a hearing standard for firefighters is a reasonable and bona fide occupational requirement related to the safe and effective performance of the essential duties of the job.

2. The Commission remains of the view that the evidence indicates that the expert consulted by the respondent looked at the complainant’s assessment and gave an expert opinion that the complainant could not be a safe and effective firefighter. The respondent did not employ the complainant because he did not meet the required standards for a firefighter.

The Standard of Review

16In reviewing the Commission’s exercise of discretion whether to refer a complaint to the Tribunal, a court must determine whether the decision was patently unreasonable (Losenno v. Ontario Human Rights Commission, 2005 36441 (ON CA), [2005] O.J. No. 4315 (C.A.); Gismondi v. Ontario Human Rights Commission (2003), 2003 21371 (ON SCDC), 169 O.A.C. 62 (Div. Ct.) at 69).

The Issue

17The central issue in this case is whether the Commission reached a patently unreasonable decision by failing to apply the proper criteria for a bona fide occupational requirement.

Analysis

18The applicant submits that the City failed to provide individualized testing for him or to prove undue hardship in accommodating his disability. More precisely, the Commission is said to have erred when it relied upon the opinion of the City’s audiologist, who had not met the applicant personally. As well, the Commission did not require the City to perform an individualized test on the applicant, such as a simulation of firefighting conditions. Therefore, he submits that the criteria for a bona fide occupational requirement were not met, and the Commission made a patently unreasonable decision in failing to refer his complaint to the Tribunal. In addition, he submits that the Commission’s investigation of his complaint was not carried out properly, as the investigator failed to speak with firefighters employed by the City who were hearing impaired.

19The applicant sought a position as a firefighter. The City of Toronto has a fire department with 2,765 firefighters in fire suppression and 304 in fire prevention. The position of suppression firefighter involves both attending at fire and emergency medical incidents with other members of the fire service as well as other emergency personnel, such as police and ambulance. According to the City, there is often significant noise in emergency situations. Moreover, firefighters who enter burning buildings must frequently navigate by touch or hearing alone.

20The City, in its response to the applicant’s complaint, stated,

It is the position of the City that the ability to understand speech and locate sound are bona fide occupational requirements for a suppression fire fighter and cannot be accommodated without undue hardship. Working in emergency situations with environmental noise and poor visibility is an essential duty for a suppression fire fighter. Even with the most advanced of hearing aids, the complainant’s hearing is not effective in helping him discriminate speech or locate sound in emergency environments. Because the complainant cannot communicate effectively with others or locate voices in emergency situations, his presence would put the health and safety of other emergency services workers and members of the public, at risk. To put him in the position of suppression fire fighter would therefore provide an undue hardship to the City as set out in subsection 17(2) of the Ontario Human Rights Code (“the Code”).

21The City also submitted that affording the applicant an evaluation in a firefighting simulation would cause undue hardship, both because a firefighting simulation would expose the applicant and others involved to danger and because the estimated cost was $17,400.

22Sections 36 and 37 of the Code confer discretion on the Commission whether to refer a complaint to the Tribunal. In this case, there was a rational basis for the Commission’s decisions not to refer the applicant’s complaint. The Commissioners reviewed the Case Analysis Report completed during the investigation and the Reconsideration Report, as well as the extensive submissions from the applicant and the City. They concluded that the City’s standard for fire fighters was a reasonable and bona fide occupational requirement related to the safe and effective performance of the job of suppression firefighter, and that the City had assessed the applicant on an individualized basis.

23It is not the task of this Court to weigh the evidence, but to determine whether the decision of the Commission was patently unreasonable. In this case, there is evidence that after the unaided hearing test, the City engaged in an individualized assessment of the applicant. The City Fire Department physician consulted Dr. Gledhill at York University to see if the applicant could work safely as a suppression firefighter with accommodation. The City obtained an opinion from Dr. Hood, an expert in occupational hearing and hearing aids who has in-depth knowledge of fire training, firefighting and the safety requirements of both. He reviewed the reports of the applicant’s audiologist and came to the conclusion that the applicant could not achieve safe and effective hearing during firefighting, even with a hearing aid, because of problems with localization of sound and sound discrimination.

24During the hearing of this application, the applicant raised the issue of accommodation by allowing him to stay with the fire truck or to work in the community. However, the Commission accepted the City’s submission that accommodation requirements are different for new hires and for existing employees, and the focus in this case is the applicant’s ability to do the job for which he applied – suppression firefighting.

25While the applicant submits that the Commission did not fully investigate his complaint, the investigation included interviews with eight witnesses and the gathering and review of extensive documentary evidence. The Case Analysis Report stated that most of the firefighters identified as hearing impaired by the applicant were reluctant to be interviewed or provide medical evidence. However, the Report concluded that it was not possible to determine whether persons with a hearing loss similar to the complainant were successfully employed. As the degree and nature of hearing loss varies, an expert opinion would be necessary to make the comparison.

26The Commissioners were of the view that the investigation was appropriate. They concluded that the hearing standard was a reasonable and bona fide occupational requirement for a firefighter, that the applicant had been individually assessed, and that he did not meet the required standard. Given the evidence obtained during the investigation of the complaint and set out in the reports before the Commission, it can not be said that the Commission’s decision not to refer the complaint to the Tribunal was patently unreasonable.

27Therefore, the application for judicial review is dismissed. If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of this decision.

Swinton J.

Carnwath J.

Epstein J.