Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840

CITATION: Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840

COURT FILE NO.: DC-13-450

DATE: 20140324

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: EIAN GILL, Applicant

AND:

HUMAN RIGHTS TRIBUNAL OF ONTARIO, HAMILTON PROFESSIONAL FIREFIGHTERS ASSOCIATION, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 288 and CITY OF HAMILTON, Respondents

BEFORE: MARROCCO ACJSC, WHITAKER J, ELLIES J

COUNSEL: Raymond Hall, Wade R. Poziomka, for the Applicant

Howard Goldblatt, for the Respondents Hamilton Professional Firefighters Association, International Association of Fire Fighters, Local 288

Frank Cesario, Lauri A. Reesor, for the Respondent City of Hamilton

Margaret Leighton, for the Respondent Human Rights Tribunal of Ontario

HEARD: AT HAMILTON: February 26, 2014

Judicial Review Application ENDORSEMENT

A.C.J.S.C. MARROCCO

[1] The applicant applies for judicial review of a decision of the Human Rights Tribunal of Ontario (the “Tribunal”) issued August 1, 2012. The Tribunal dismissed the applicant’s claim of age discrimination following a Summary Hearing ordered pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

[2] The application sets out on one ground: that the Tribunal “erred in fact and law by failing to properly apply Steps One and Two of the mandatory bona fide occupational requirement three step test set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 652 (SCC), [1999] 3 SCR 3 (“Meiorin”) to the facts of the complaint.”

[3] The parties agree that the standard of review is reasonableness.

[4] On February 12, 2010, Mr. Gill turned 60 and was required to retire from his position as a suppression firefighter, pursuant to the collective agreement between the Hamilton Professional Firefighters’ Association (the “Association”) and the City of Hamilton. He had refused accommodation in the form of a position as a communications officer.

[5] In early 2011 Mr. Gill filed an application with the Tribunal alleging that the collective agreement’s mandatory retirement provision violated section 5 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

[6] The Association filed a Response and also filed a Request for Summary Hearing. The Association maintained that there was no basis upon which the Tribunal could find a violation of s. 5 due to its decision in Espey v. London (City), 2008 HRTO 412.

[7] In response to the Association’s Request, the Tribunal held a Summary Hearing on December 7, 2011 and February 7, 2012.

[8] On August 1, 2012, the Tribunal concluded that there was no reasonable prospect that the result of Mr. Gill’s application would be different than the result in Espey and dismissed Mr. Gill’s application. Mr. Gill applies to quash that decision.

The Tribunal’s power to hold Summary Hearings

[9] The Tribunal has jurisdiction to determine all questions of fact or law arising in an application. Its decisions are final and binding: see ss. 39 and 45.8 of the Code.

[10] The Tribunal has the power to make rules governing the practices and procedures before it and these rules prevail over those set out in any other Act: see s. 43(1) of the Code. Even if section 43(1) did not exist, it is a well-established principle of administrative law that tribunals are the masters of their own procedure: see, for example, Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282 at pp. 307, 338.

[11] The Tribunal has in fact made Rules that govern its own procedures and practices, and Rule 19A provides that the Tribunal may hold a Summary Hearing to determine whether an application should be dismissed in whole or in part because there is no reasonable prospect it will succeed.

[12] This Rule is entirely appropriate for the Tribunal or any tribunal for that matter. The Tribunal is attempting to facilitate access to justice. It cannot use filing or other fees as a gatekeeping mechanism. At the same time the Tribunal does not have unlimited resources. Accordingly, one person’s access to the Tribunal can only come at the expense of another’s, unless the Tribunal has a very light case load, which it does not. Rule 19A is a responsible and rational attempt by the Tribunal to prudently use its limited resources to facilitate access for persons bringing applications that might reasonably succeed.

[13] The burden of proof at a Rule 19A Summary Hearing is on the party requesting the hearing. The notion of a burden of proof is essential for the orderly presentation of information, documents and oral evidence. The notion of a burden of proof should be applied in such a way that the Tribunal comes to understand in a commonsense way the nature of the case and the applicable law so that it can economically determine whether the application has a reasonable prospect of succeeding.

[14] In this case the burden of proof rested upon the Association. The Association was entitled to rely upon previous Tribunal jurisprudence in discharging this burden.

Effect of the Espey decision

[15] As a matter of sound practice tribunals should endeavour to achieve coherence and consistency in their decisions. This is sound practice because it permits those affected by a tribunal’s decisions to compliantly plan their affairs: see Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), 1993 106 (SCC), [1993] 2 S.C.R. 756, at 784-85. Of course, with the passage of time circumstances will change and tribunals may decide to depart from previous decisions. When this occurs remains largely a policy choice exquisitely within the expertise of the tribunal: see Domtar, at 801.

[16] Espey was a decision of the Tribunal issued 14 months before Mr. Gill retired. In that case a suppression firefighter employed by the City of London challenged the mandatory retirement provision contained in the collective agreement between the City of London and the London Professional Fire Fighters Association. The City of London and the London Professional Fire Fighters Association were each represented by counsel. The case was brought as a test case and was heard over nine days, with each side calling expert witnesses. Evidence was called about collective agreements across the province and there was even a specific reference to the application of the Hamilton mandatory retirement provision.

[17] The issue in Espey was whether the requirement that suppression firefighters retire at age 60 was justified as a bona fide occupational requirement based upon the risk of cardiac events for firefighters.

[18] The Tribunal decided that all three elements of the bona fide occupational requirement test from Meiorin (the “Meiorin test”) were met. On the first two elements – rational connection and good faith – the Tribunal held as follows, at para. 72:

In light of the increasing risk of cardiac events with age, and the effects of a cardiac event on the work of a firefighter, it is evident that mandatory retirement is rationally connected to the work of a firefighter, to protect health and safety. It is also evident that this standard was adopted in good faith to promote the work-related purpose of protecting health and safety.

[19] The Tribunal concluded that mandatory retirement at age 60 met the Meiorin test as it was reasonably necessary to ensure the health and safety of firefighters and accommodation of individual firefighters would result in undue hardship.

[20] The Espey decision engaged in an analysis of the safety risks of suppression firefighting, the possibility of individual testing for health and safety risks and the fact that the mandatory retirement provision resulted from collective bargaining. It was a test case for the compliance of mandatory retirement provisions respecting suppression firefighters with s. 5 of the Code. The Association’s suggestion that the Espey decision would be determinative of Mr. Gill’s complaint was therefore reasonable, and it was appropriate for the Tribunal to ask if Mr. Gill intended to lead evidence that would justify relitigating the analysis and findings in Espey. Mr. Gill was not obliged to lead evidence but if he failed to do so he ran the risk that his application would be summarily dismissed. Mr. Gill did offer evidence and, in fact, the proceedings were adjourned from December to February to permit Mr. Gill to lead further evidence.

[21] The Tribunal analyzed the evidence and submissions offered by Mr. Gill and his counsel.

[22] Specifically, several articles were provided to the Tribunal by Mr. Gill. The Tribunal commented on each of the articles and explained why it attached virtually no weight to any of them. For example, Mr. Gill provided an article by a lawyer and retired paramedic firefighter from a publication called “Fire Engineering.” Mr. Gill suggested that this article supported the proposition that the vast majority of sudden cardiac events among firefighters were predictable. The Tribunal rejected the article as support for this proposition because it contained no original research, interpreted previous statistical studies and focused on fitness programs for firefighters. The article, in the Tribunal’s view, provided no basis for relitigating the factual findings in the Espey decision that were based on detailed evidence from cardiologists. The Tribunal went on to consider the other articles offered by Mr. Gill and explained why, individually and collectively, they were not persuasive.

[23] The Tribunal rejected Mr. Gill’s submission that it was required to hold a hearing in each case where a firefighter from a different municipality challenged a mandatory retirement provision. The Tribunal concluded that there was no reason to believe that the reasons for the mandatory retirement provisions, and whether they were implemented in good faith for a work-related purpose, differed from municipality to municipality.

[24] The Tribunal found no reason to depart from its conclusion in Espey that individualized testing of firefighters for their personal propensity to experience “on the job” cardiac events did not exist and that the better risk assessment concerning such events was age.

[25] The Tribunal rejected Mr. Gill’s submission that because City of Hamilton volunteer firefighters are not required to retire at age 60, the same should hold for him. The Tribunal distinguished the less onerous demands on volunteer firefighters from those experienced by suppression firefighters. More generally, the Tribunal concluded that different choices by different bargaining units did not lead to the conclusion that mandatory retirement could not be justified as a bona fide occupational requirement.

[26] The Tribunal concluded that Mr. Gill’s application had no prospect of success because he had failed to demonstrate, at a level beyond speculation, that the result in his case would differ from the result in Espey. Even if we had a different view of the evidence, which we do not, it would not be appropriate for us on an application for judicial review to substitute our assessment of the evidence for the Tribunal’s assessment.

[27] The Tribunal’s decision is grounded in the facts, law, information, and documents that were before it. The Tribunal’s reasons are clear and intelligible. We cannot say that the Tribunal’s conclusion that Mr. Gill’s application had no reasonable prospect of success was unreasonable, having regard to the facts or law upon which it was based.

Proof of the Meiorin test

[28] Mr. Gill relied in his submissions before us on the fact that the respondent City of Hamilton was required to prove to the Tribunal that mandatory retirement was a bona fide occupational requirement. Mr. Gill, through his counsel, pointed out that he did not waive proof of any of the three elements. The three elements require proof that:

• mandatory retirement was established for a legitimate work-related purpose rationally connected to the performance of suppression firefighting;

• mandatory retirement was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose;

• mandatory retirement was reasonably necessary to accomplish this purpose and, in particular, that individual employees over the age of 60 could not be accommodated without undue hardship: see Meiorin.

[29] The Espey decision was helpful concerning these three elements. It came to the conclusion that the risk of cardiac events increases with age. It concluded that there is a relatively high rate of on-duty cardiovascular deaths among firefighters attributable to the physical and psychological stresses of firefighting. It concluded that age is a very significant contributor to cardiac event risk, that there is a significantly increased risk of cardiovascular disease around the age of 60 in both men and women and that this risk increases with age. It concluded that the existing occupational testing for firefighters itself exposes them to the risk of a cardiac event and that existing occupational testing does not reliably detect the likelihood of a cardiac event.

[30] On the basis of these findings the Tribunal concluded that mandatory retirement was reasonably necessary to serve the health and safety goals of the municipality and that modifying the practice would cause undue hardship. This conclusion was reached 14 months before Mr. Gill retired. It was reasonable for the Tribunal to conclude, in the absence of persuasive evidence, that nothing had changed in this regard.

[31] The Tribunal was aware that the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, was amended in June 2011 to provide that every firefighter collective agreement included mandatory retirement at age 60. The fact that the Legislature of Ontario came to the same conclusion as the bargaining unit and the City of Hamilton is some evidence that the mandatory retirement provision challenged by Mr. Gill was adopted in an honest and good faith belief that it was necessary to protect the health and safety of suppression firefighters. In addition, there was nothing in the record before the Tribunal in this matter to suggest the City of Hamilton and the Association did not honestly and in good faith believe that mandatory retirement at age 60 was necessary to protect the health and safety of the suppression firefighters in the bargaining unit. It was reasonable for the Tribunal to conclude, in the absence of persuasive evidence, that there was no reasonable prospect that the City of Hamilton would fail to prove this element of the Meiorin test.

[32] Finally, Mr. Gill was offered an accommodation in the form of a position as a communications officer. This position is in the same bargaining unit as suppression firefighters. Mr. Gill declined the accommodation. Accordingly the third element of the Meiorin test was not a live issue before the Tribunal.

[33] This application for judicial review is dismissed with costs which, including disbursements, are fixed at $5,000.00 plus appropriate taxes.

Marrocco A.C.J.S.C.

Whitaker J.

Ellies J.

Date: 20140324