Corrigan v. Corporation of the City of Mississauga, 2015 ONSC 236
CITATION: Corrigan v. Corporation of the City of Mississauga, 2015 ONSC 236
DIVISIONAL COURT FILE NO.: 387/13
DATE: 20150130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, J. MACKINNON AND LEDERER JJ.
BETWEEN:
THOMAS CORRIGAN et al.
Applicants
– and –
CORPORATION OF THE CITY OF MISSISSAUGA and mississauga fire fighters’ association local 1212
Respondents
Julian N. Falconer, Julian K. Roy and Asha James, for the Applicants
Frank Cesario and Lauri A. Reesor, for the Respondent City
Howard Goldblatt, for the Respondent Association
Margaret Leighton, for the Human Rights Tribunal of Ontario
HEARD at Toronto: January 12, 2015
Swinton J. :
Overview
[1] The applicants are suppression firefighters, including two Platoon Chiefs. Each applicant challenged a requirement that suppression firefighters employed by the City of Mississauga (“the City”) retire at age 60. They claimed that the City discriminated on the basis of age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”), because it failed to accommodate them in the suppression firefighter position after they reached the age of 60, as requested. The Human Rights Tribunal of Ontario (the “Tribunal”) dismissed their applications after a summary hearing, concluding that the applications had no reasonable prospect of success. The applicants seek judicial review of that decision.
[2] As the Tribunal’s decision was reasonable, I would dismiss the application.
Background
[3] In reaching its decision with respect to the applications, the Tribunal relied on its earlier decision in Espey v. London (City), 2008 HRTO 412. That decision, reached after a nine day hearing, held that mandatory retirement at age 60 for suppression firefighters is a bona fide occupational requirement (“BFOR”) and does not violate the Code.
[4] In Espey, the Tribunal applied the three-part test for a BFOR set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 652 (SCC), [1999] 3 S.C.R. 3 [Meiorin] at para. 54). The Tribunal held that mandatory retirement is rationally connected to the work of a firefighter in order to protect health and safety, because there is an increasing risk of cardiac events with age and a significant increase in risk of cardiac disease at the age of 60. That risk is increased for firefighters, especially in emergency situations.
[5] The Tribunal concluded that the standard was adopted in good faith to protect health and safety. As well, mandatory retirement for firefighters at age 60 was reasonably necessary to ensure the health and safety of firefighters, and accommodation of individual firefighters would result in undue hardship to the respondents. In reaching that decision, the Tribunal considered the possibility of individual testing, concluding (at para. 87):
…it has been shown on a balance of probabilities that there is no individual testing method that would allow a better risk assessment of on-the-job events for firefighters more accurately than age, given their occupation-related risks of heart disease. (emphasis in original decision)
The Tribunal also considered the terms and conditions of employment in fire services, including the availability of pensions, and the avoidance of universal individual testing, which might lead to prima facie discrimination on the basis of disability.
[6] Although the Tribunal held that mandatory retirement at age 60 was a BFOR, the Tribunal left open the possibility of individual exceptions to a mandatory requirement policy, stating (at para. 100):
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.
[7] Subsequently, in Gill v. Hamilton Professional Fire Fighters’ Association, 2012 HRTO 1506, the Tribunal summarily dismissed an application that sought to re-litigate Espey. An application for judicial review was dismissed (see Gill v. Human Rights Tribunal of Ontario, 2014 ONSC 1840 (Div. Ct.)).
[8] Given the holdings in Espey and Gill, the applicants in the present case did not argue before the Tribunal that mandatory retirement at age 60 is not a BFOR. Rather, they submitted to the Tribunal that they should have been accommodated, in accordance with paragrah 100 of Espey. They submitted that once a request was made that they be accommodated in the position of suppression firefighter, the City was required to engage in a dialogue about the possibility of individual testing that could determine whether the individual making the request should be given an exception from the mandatory retirement provision. Instead, the City had responded to their requests by offering accommodation only in positions other than suppression firefighter, which they refused. The applicants argue that this was a breach of the Code.
[9] The Tribunal held that the applications had no reasonable prospect of success, given that Espey contemplated a narrow exception to the mandatory retirement regime, where the firefighter presented individualized medical evidence to show that he or she had an “extremely low or negligible risk” of cardiac events. The applicants never presented any medical evidence directed to their personal health situation. Espey and the duty to accommodate do not require “an employer or association to research and engage in a search for individual testing protocols each time an employee makes a general request” (Reasons at para. 24). Accordingly, the City met its obligation to accommodate when it offered the applicants alternative positions, which they rejected.
Standard of Review
[10] All parties agree that the standard of review of the Tribunal’s decision is reasonableness.
Analysis
[11] The applicants argue that the Tribunal decision is unreasonable. They argue that the City had a duty to accommodate them, the procedural aspect of which required the City to consider individual testing and to enter into a dialogue with the applicants, once a request for accommodation in the suppression firefighter position was made. They also argue that the Tribunal should not have dismissed their application through a summary hearing; rather, it should have allowed them to have a full hearing on the merits with evidence.
[12] I do not accept the applicants’ submissions. The Tribunal applied the test for a summary hearing from Dabic v. Windsor Police Service, 2010 HRTO 1994 and concluded that the applications had no reasonable possibility of success. The Tribunal reasonably relied on its decision in Espey, which determined that mandatory retirement at age 60 was a BFOR for suppression firefighters. The applicants stated to the Tribunal that they did not seek to attack that conclusion. Therefore, the issue before the Tribunal was whether there was a reasonable prospect of success based on the individuals’ claims to accommodation in the position of suppression firefighter.
[13] The Tribunal noted that while Espey contemplated that an employer might be required to offer individual accommodation in a firefighter position, the exception was a narrow one. To fall within the exception, an individual must come forward with a request to continue in that position based on evidence that the particular individual is at an extremely low or negligible risk of cardiac events. The applicants failed to bring forward any such evidence or indicate that such evidence was available, only that they would seek it for a hearing. The applicants also failed to suggest a possible testing regime that would be capable of eliciting such specific medical evidence. Absent this evidence, the Tribunal reasonably concluded that the procedural duty to accommodate in the firefighter position was not triggered.
[14] The Tribunal reasonably concluded that the expert evidence submitted by the applicants was not relevant to the issue before it, as the expert evidence sought to challenge the basis of factual findings in Espey and to suggest alternative testing approaches, including annual medical tests. The report did not address the issue before the Tribunal – namely, whether there was medical evidence that the individual applicants had an extremely low or negligible risk of cardiac events.
[15] I agree with the Tribunal’s statement at para. 36 of the reasons that to require the City to investigate and develop an individualized testing regime in advance of such particularized evidence from the individual applicants would render meaningless the mandatory retirement regime endorsed in Espey and now required in collective agreements by s. 53.1 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (as amended S.O. 2011, c. 13, s. 2).
Conclusion
[16] Accordingly, the application for judicial review is dismissed.
[17] If the parties cannot agree on costs, they may make brief written submissions, through the Divisional Court office, within 21 days of the release of this decision.
Swinton J.
J. Mackinnon J.
Lederer J.
Released: January 30, 2015
CITATION: Corrigan v. Corporation of the City of Mississauga, 2015 ONSC 236
DIVISIONAL COURT FILE NO.: 387/13
DATE: 20150130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, J. MACKINNON AND LEDERER JJ.
BETWEEN:
THOMAS CORRIGAN et al.
Applicants
– and –
CORPORATION OF THE CITY OF MISSISSAUGA and mississauga fire fighters’ association local 1212
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: January 30, 2015