Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297

The City of Saskatoon and The Saskatoon Professional Fire Fighters Union, Local 80 Appellants

v.

The Saskatchewan Human Rights Commission and Len Craig Respondents

indexed as: saskatchewan (human rights commission) v. saskatoon (city)

File Nos.: 20529, 20523.

1989: February 27; 1989: December 21.

Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka and Cory JJ.

on appeal from the court of appeal for saskatchewan

Civil rights -- Mandatory retirement -- Alleged discrimination on the basis of age -- Defence of bona fide occupational qualification -- Chief Fire Inspection Officer retired pursuant to mandatory retirement clause in labour contract -- Whether or not Chief Fire Inspection Officer a fire fighter -- Whether or not "reasonable" occupational qualification importing same test as "bona fide" occupational qualification -- Whether or not failure to consider efficacy of individual testing error of law -- Whether or not Union violated s. 18 of the Code -- Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, ss. 16(1), (4), (7), 18, 32 -- Saskatchewan Regulation 216/79, s. 1(a), (b) ‑‑ City By‑law 5585, s. 5.1.

Respondent Craig served as Chief Fire Prevention Officer until he was retired when he reached the mandatory retirement age provided for in the collective agreement between the City and the Union and incorporated into the City's by‑laws. Craig filed a complaint with the Saskatchewan Human Rights Commission alleging that his mandatory retirement contravened the Code's prohibition against discrimination on the basis of age and that it could not be justified as a "reasonable occupational qualification and requirement" within the meaning of the Code. A Board of Inquiry found the City's mandatory retirement policy to be a prima facie case of age discrimination contrary to s. 16(1) of the Code. It also held that s. 16(1) did not apply to the Union and dismissed the allegation that the Union has discriminated against Craig in violation of s. 18 of the Code. The Saskatchewan Court of Queen's Bench dismissed an appeal from the Board's decision. The Saskatchewan Court of Appeal set aside that decision and remitted the matter to the Board.

A number of issues were considered: whether or not Craig was a fire fighter; the meaning of "reasonable occupational qualification and requirement" in s. 16(7) of the Code; whether or not it was necessary to consider the efficacy of individualized testing; and whether or not the Union violated s. 18 of the Code?

Held: The appeals should be allowed.

The Board's conclusion that Craig was responsible for the same duties as a fire fighter duties even though he was not required, as Chief Fire Prevention Officer, to fight any fires was a finding of fact and accordingly could not be reconsidered unless the decision was made absent any evidence at all. There was ample evidence upon which the Board could base its conclusion, and that conclusion should not be disturbed on appeal.

The general philosophy of human rights legislation is that persons are not to be judged or dealt with on the basis of external characteristics such as race, age, sex, etc., but on individual merit. That is the general rule, and violation of it constitutes discrimination. The defence of bona fide occupational qualification or requirement is an exception to the general rule. The test as established by this Court in Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, with respect to the Ontario Code, obliges the employer to show that the requirement, although it cannot necessarily be justified with respect to each individual, is reasonably justified in general application.

The language of the Saskatchewan Code was not sufficiently different to alter what are generally accepted as the characteristics of this defence. For a work rule to be reasonable (as required under the Saskatchewan Code) it would also have to be bona fide (as required under the Ontario Code). The word "reasonable" did not necessarily exclude the application of any subjective element from s. 16(7) of the Saskatchewan Code.

The individualized approach was not justified. The subjective requirement obliges the employer to establish that the employer had a sincerely held belief that the requirement was reasonably necessary for the adequate performance of the work and was not adopted for any ulterior or extraneous reasons. The objective standard requires the employer to establish that, apart from his belief, the requirement is in fact reasonably necessary. In both the subjective and objective applications of the test, the reasonableness of the requirement is vital. The elimination of the subjective element, which is an additional burden imposed on an employer who seeks to avail himself of the defence, cannot transform the defence from one that requires a generalized approach to one that requires a specific examination of individual circumstances.

The Regulations, which sought to define the ingredients of the defence, did not affect the application of the Etobicoke test to s. 16(7) of the Code. An important element of the defence was exclusivity in relation to the age group that the employer desires to retain as his or her employees. The definition provided by the Regulations, however, was itself not exclusive. The employer could justify the impugned policy either by bringing it within the enumerated definitions or the Etobicoke definition. The City justified its mandatory retirement policy on the basis of the definition approved in Etobicoke.

The Regulation required that the employer establish that employer show that it was necessary to hire persons in one age group exclusively in order that the duties of the job can be performed safely. The standard with which the employer must establish necessity was one of reasonableness for otherwise the Regulations would conflict with the Code and with the general defence.

While it is not an absolute requirement that employees be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing. If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it. Absent error of law, the Board's decision as to whether or not individual testing was feasible should stand. It correctly applied the law, found as a fact that there was no practical alternative available to the appellant, and concluded the employer was acting reasonably its mandatory retirement policy.

It is unnecessary to deal with the application of s. 16(4) to the facts of this case.

There is no unlawful discrimination by a union contrary to s. 18 if there is no unlawful discrimination by the employer. The employer has not discriminated if a defence has been made out under s. 16(7). There cannot therefore be discrimination by a union that has merely agreed to a non‑discriminatory act by an employer. The Union accordingly did not discriminate against Craig contrary to s. 18 of the Code.

Cases Cited

Applied: Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202; referred to: Saskatchewan (Human Rights Commission) v. Moose Jaw (City), [1989] 2 S.C.R. 000; Bhinder v. Canadian National Railway Co., 1985 CanLII 19 (SCC), [1985] 2 S.C.R. 561; Re City of Winnipeg and Ogelski (1986), 1986 CanLII 4057 (MB CA), 31 D.L.R. (4th) 161; Brossard (Town) v. Quebec (Commission des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279; Air Canada v. Carson, 1985 CanLII 5499 (FCA), [1985] 1 F.C. 209.

Statutes and Regulations Cited

A Bylaw of The City of Saskatoon To Provide For Superannuation of The Employees of The Fire Department, City By‑law 5585, s. 5.1.

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12.

Ontario Human Rights Code, R.S.O. 1970, c. 318, s. 4(6).

Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, ss. 16(1), (4), (7), 18, 32.

Saskatchewan Regulation 216/79, s. 1(a), (b).

APPEALS from a judgment of the Saskatchewan Court of Appeal (1987), 1987 CanLII 202 (SK CA), 57 Sask. R. 241, 40 D.L.R. (4th) 143, [1987] 5 W.W.R. 173, 40 CLLC {PP} 17,024, allowing an appeal from a judgment of Maher J. (1985), 1985 CanLII 2343 (SK QB), 37 Sask. R. 1, dismissing an appeal from a decision of a Board of Inquiry created pursuant to The Saskatchewan Human Rights Code. Appeals allowed.

Theresa Dust and Barry Rossmann, for the appellant City of Saskatoon.

George Taylor, Q.C., and Eric Cline, for the appellant Saskatoon Professional Fire Fighters Union, Local 80.

Milton C. Woodard, for the respondents.

//Sopinka J.//

The following is the judgment of the Court delivered by

SOPINKA J. -- These appeals arise out of a complaint by the respondent Craig to the respondent Saskatchewan Human Rights Commission pursuant to provisions of The Saskatchewan Human Rights Code, S.S. 1979, c. 24.1, ("the Code") alleging that the appellants, the City of Saskatoon (the "City") and The Saskatoon Professional Fire Fighters Union, Local 80 (the "Union"), discriminated against Craig by requiring him to retire from his employment with the Saskatoon Fire Department upon attaining age sixty. These are appeals from the decision of the Court of Appeal for Saskatchewan, which set aside the order of the Court of Queen's Bench dismissing an appeal from a Board of Inquiry, which had dismissed Craig's application against the appellants.

Facts

The respondent Craig joined the Saskatoon Fire Department as a fire fighter in 1947. In 1967 he was promoted to the position of Fire Inspector and was named Chief Fire Inspection Officer, otherwise known as Chief Fire Prevention Officer, in 1977. Craig served in this capacity until May 1982, when he reached age sixty and was retired pursuant to the provisions of the collective agreement between the City and the Union.

Since 1947 the collective agreement between the City and the Union has required that every member of the fire department retire at age sixty. Specifically, Article 12 of the collective agreement provided as follows:

Article 12. SUPERANNUATION AND RETIREMENT

(a)With the exception of those employees covered by General Superannuation Bylaw #4323, who will retire on the first of the month succeeding their sixtieth (60th) birthday, all employees covered by this Agreement shall be retired at the first of next month following their sixtieth (60th) birthday, in accordance with Bylaw #5585.

As well, City By-law 5585 incorporates the Superannuation Plan of the Fire Department, s. 5.1 of which provides for retirement at age sixty.

Craig filed a complaint with the Saskatchewan Human Rights Commission alleging that his mandatory retirement contravened the Code's prohibition against discrimination on the basis of age and that it could not be justified as a "reasonable occupational qualification and requirement" within the meaning of the Code. The relevant provisions of the Code and the regulations thereunder are as follows:

The Code

16.--(1) No employer shall refuse to employ or continue to employ or otherwise discriminate against any person or class of persons with respect to employment, or any term or condition of employment, because of his or their race, creed, religion, colour, sex, marital status, physical disability, age, nationality, ancestry or place or [sic] origin.

(4) No provision of this section relating to age prohibits the operation of any term of a bona fide retirement, superannuation or pension plan, or any terms or conditions of any bona fide group or employee insurance plan, or of any bona fide scheme based upon seniority.

(7) The provisions of this section relating to any discrimination, limitation, specification or preference for a position or employment based on sex, physical disability or age do not apply where sex, physical ability or age is a reasonable occupational qualification and requirement for the position or employment.

18. No trade union shall exclude any person from full membership or expel, suspend or otherwise discriminate against any of its members, or discriminate against any person in regard to employment by any employer, because of the race, creed, religion, colour, sex, marital status, physical disability, age, nationality, ancestry or place of origin of that person or member.

Saskatchewan Regulation 216/79

1. In The Saskatchewan Human Rights Code:

(a) "marital status" means that state of being engaged to be married, married, single, separated, divorced, widowed or living in a common-law relationship, but discrimination on the basis of a relationship with a particular person is not discrimination on the basis of marital status;

(b) "reasonable occupational qualification" means, inter alia, a qualification:

(i) that renders it necessary to hire members of one sex, one age group or of a certain physical ability exclusively in order that the essence of the business operation is not undermined; or

(ii) that is essential or an overriding, legitimate business purpose; or

(iii) that renders it necessary to hire members of one sex, one age group or of a certain physical ability exclusively in order that the duties of a job involved can be performed safely;

but does not include, inter alia, a qualification:

(iv) based on assumptions of the comparative employment characteristics of that sex, age group or state of physical disability in general;

(v) based on stereotyped characterizations of the sex, age group or physical disability;

(vi) based on the preferences of co-workers, the employer, clients or customers, except that, where it is necessary for the purpose of authenticity or genuineness, sex shall be a reasonable occupational qualification;

(vii) that distinguishes between "light" and "heavy" jobs which operate in a disguised form of classification by sex and which creates unreasonable obstacles to the advancement by females into jobs which females could reasonably be expected to perform;

Board of Inquiry

As a result of Craig's complaint a Board of Inquiry (the "Board") was created pursuant to the Code to consider whether the City's mandatory retirement policy violated s. 16(1) of the Code and whether the Union violated s. 18 of the Code by agreeing to the age-based retirement provisions.

The Board first concluded that the mandatory retirement provisions in the collective agreement constituted a prima facie case of age discrimination. The central question was whether these provisions could be characterized as a "reasonable occupational qualification and requirement" within the meaning of s. 16(7) of the Code. Despite the appellants' [respondents herein] contention that the Chief Fire Inspector and his Fire Inspectors were not responsible for the same duties as fire fighters, the Board held that members of the Fire Prevention Department, including Craig, were fire fighters and were required to engage in active fire fighting when so called upon by the Fire Chief. The Board also concluded that both investigative work and actual fire fighting were strenuous occupations, and that the risk of failure by a fire fighter endangered the fire fighter, the fire fighter's colleagues and the public.

Based in part on the decision of this Court in Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 ("Etobicoke"), which defined a "bona fide occupational qualification and requirement" in the context of The Ontario Human Rights Code, the Board held that the mandatory retirement of Craig at age sixty was justified pursuant to s. 16(7) of the Code. The Board considered expert evidence presented by the respondents suggesting that a more accurate determination of fire fighters' ability to perform their duties could be made if each employee were individually tested. The Board concluded on the basis of evidence before it that as a person ages his or her ability to perform the tasks required of a fire fighter decreases. The Board was also of the opinion that there was no reliable testing procedure that would accurately determine how an individual fire fighter would be able to cope in an emergency situation. Therefore, it was unnecessary to undertake individualized functional testing in order to determine if age is a reasonable occupational qualification and requirement for the position of a fire fighter. The Board was satisfied that the mandatory retirement of Craig at age sixty did not fall afoul of the prohibition in s. 16(1) of the Code, by virtue of the operation of a s. 16(7) "reasonable occupational qualification" defence.

Finally, the Board held that the provisions of s. 16(1) do not apply to the Union and therefore dismissed the allegation that the Union had discriminated against Craig in violation of s. 18 of the Code.

Court of Queen's Bench ((1985), [1985 CanLII 2343 (SK QB)](https://www.canlii.org/en/sk/skqb/doc/1985/1985canlii2343/1985canlii2343.html), 37 Sask. R. 1)

An appeal was taken to the Court of Queen's Bench under s. 32 of the Code, which permits an appeal on a question of law from the decision of a Board of Inquiry. Maher J. dismissed the appeal.

Maher J. initially stated that not only did he agree with the Board's characterization of Craig as a fire fighter, but that this was a finding of fact and appeals from Boards of Inquiry are limited to questions of law. Maher J. also stated that it was not necessary to conduct individualized testing in order to determine whether age is a reasonable occupational qualification and requirement. It was held that this was a finding of fact made by the Board based upon statistical and medical evidence placed before the Board, and that the Board committed no error of law in applying the principles of Etobicoke to this case.

Court of Appeal ((1987), [1987 CanLII 202 (SK CA)](https://www.canlii.org/en/sk/skca/doc/1987/1987canlii202/1987canlii202.html), 57 Sask. R. 241)

The Saskatchewan Court of Appeal, Bayda C.J.S. speaking for the court, considered both this case and that of Saskatchewan (Human Rights Commission) v. Moose Jaw (City), [1989] 2 S.C.R. 000, in the same judgment. The Court of Appeal ordered that the decision of Maher J. be set aside and the matter be remitted to the Board.

Bayda C.J.S. first concluded that there was a difference between the meaning of "bona fide occupational qualification and requirement" used in s. 4(6) of the Ontario Code as defined judicially in Etobicoke and the meaning of "reasonable occupational qualification and requirement" used in s. 16(7) of the Saskatchewan Code. In his view, the definition of "reasonable occupational qualification" in the Regulations pursuant to the Code confines a court's task to construing this statutory definition. Therefore, the application of the definition of a "bona fide occupational qualification and requirement" from Etobicoke by both the Board and the Saskatchewan Court of Queen's Bench constituted an error of law.

Bayda C.J.S. distinguished Etobicoke on the ground that the use of the word "reasonable" as opposed to "bona fide" excludes the application of any subjective element from s. 16(7) of the Saskatchewan Code. Moreover, the objective aspect of the occupational requirement as detailed by this Court in Etobicoke differs from that prescribed by the Regulations under the Saskatchewan Code. It was his view that in order to rely upon either Regulation 1(b)(i) or 1(b)(iii), the employer has to prove an element of exclusivity in relation to the age group he desires to retain as his employees. In Etobicoke, which dealt with an almost identical claim that the mandatory retirement of a fire fighter was discriminatory, McIntyre J. held that for the purpose of that case it was not enough for the employees to argue simply that some below age sixty may become unfit for fire fighting while many above that age may remain fit. Bayda C.J.S. held that Etobicoke was inapplicable since the Saskatchewan Regulations require exclusivity of the unrestricted age group, and that the attempt here to invoke s. 16(7) could not succeed unless no persons below age sixty became unfit for fire fighting. On this interpretation he concluded that the fact that some below age sixty might become unfit and many above that age would be fit leads inexorably to the conclusion that s. 16(7) may not be relied upon in this case, since there is nothing exclusive about the age group.

As well, Bayda C.J.S. held that the Board and the Court of Queen's Bench erred in failing to consider the efficacy of individualized testing as a relevant factor in determining whether a reasonable occupational qualification defence had been made out. He distinguished Bhinder v. Canadian National Railway Co., 1985 CanLII 19 (SCC), [1985] 2 S.C.R. 561, in which this Court concluded that the individual application of a working condition is foreign to an occupational requirement. In his view, the use of the word "necessary" in both Regulation 1(b)(i) and 1(b)(iii) prevented reliance upon age-based criteria when there were other means such as physiological testing which are practical and capable of identifying those individuals who are in the sufficient risk category. In addition, Bayda C.J.S. held that an occupational requirement cannot be characterized as reasonable where legitimate alternative means, by individual testing, exist for securing the same valid objective without resort to age-based discrimination. Accordingly, the Saskatchewan definition of a reasonable occupational qualification permits, if not dictates, that the efficacy of individualized testing is a relevant factor for any Board of Inquiry considering an attempt to invoke s. 16(7) of the Code.

Finally, Bayda C.J.S. held that the statutory requirements of the Code do not contain any "reasonable occupational qualification" exception for the Union in respect of the s. 18 prohibition of discrimination on behalf of the Union equivalent to the exemption granted to employers by s. 16(7). Therefore, the Union was in violation of s. 18 of the Code.

The Issues

This appeal requires resolution of the following issues:

(1) Is the respondent Craig a fire fighter?

(2) What is the meaning of "reasonable occupational qualification and requirement" in s. 16(7) of the Code, and does it differ from the definition given to "bona fide occupational qualification or requirement" in Etobicoke?

(3) Did the Board fail to consider the efficacy of individualized testing and commit thereby an error of law?

(4) Does s. 16(4) apply?

(5) Did the Union violate s. 18 of the Code?

Is Craig a Fire Fighter?

The Board concluded that even though Craig's duties as Chief Fire Prevention Officer had not required that he fight any fires, he was nonetheless responsible for the same duties as a fire fighter. Despite the affirmation of this conclusion in the courts below, the respondent Commission continues to assert that the Board failed to consider the actual duties of a Fire Prevention Officer.

While this contention is not devoid of merit, the Board found as a fact that the duties of the Chief Fire Prevention Officer included the strenuous task of fire fighting. Section 32 of the Code expressly limits appeals from decisions of Boards of Inquiry to questions of law. The conclusion that Craig was a fire fighter was a finding of fact. The privative clause in s. 32 prevents any reconsideration of the issue unless the impugned decision was made in the absence of any evidence at all. In this case, there was ample evidence upon which the Board could base its conclusion, and that conclusion should not be disturbed on appeal.

Reasonable Occupational Qualification and Requirement

The Court of Appeal held that the Board erred in law in giving an interpretation to the definition of "reasonable occupational qualification and requirement" in s. 16(7) of the Code that conforms to the definition of "bona fide occupational qualification and requirement" in s. 4(6) of The Ontario Human Rights Code provided in the Etobicoke case. In that case, McIntyre J., speaking for the Court, stated, at p. 208:

Two questions must be considered by the Court. Firstly, what is a bona fide occupational qualification and requirement within s. 4(6) of the Code and, secondly, was it shown by the employer that the mandatory retirement provisions complained of could so qualify? . . . To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

This test obliges the employer to show that the requirement, although it cannot necessarily be justified with respect to each individual, is reasonably justified in general application. This interpretation was reaffirmed in Bhinder v. Canadian National Railway Co., supra, per McIntyre J. at p. 589, and per Wilson J. at p. 580. The dichotomy between an individualized approach and an approach based on average characteristics is of the very essence of a defence of this kind. The general philosophy of human rights legislation is that persons are not to be judged or dealt with on the basis of external characteristics such as race, age, sex, etc., but on individual merit. That is the general rule, and violation of it constitutes discrimination. As pointed out by McIntyre J. in Etobicoke, the defence of bona fide occupational qualification or requirement is an exception to the general rule. In the limited circumstances in which this defence applies, it is not individual characteristics that are determinative but general characteristics reasonably applied. It is important to bear in mind that we are speaking of a defence to a charge of discrimination. If an employer were required to show that each employee at age sixty is physically incapable of doing the work, there would be no necessity of a defence of reasonable occupational qualification or requirement. The employer in the circumstances to which I refer would have negated discrimination. That would be open to an employer in the absence of a provision such as s. 16(7) of the Code.

It is therefore necessary to determine whether the language of the Saskatchewan Code is sufficiently different to alter what are generally accepted as the characteristics of this defence.

The Court of Appeal stressed the difference between the use of the words "bona fide" and "reasonable". The significance of the difference in wording was said to be that the word "reasonable" excluded the application of any subjective element from s. 16(7) of the Saskatchewan Code. I would have difficulty in concluding that a term or condition of employment was reasonable if the employer did not think it was necessary. On this basis, for a work rule to be reasonable it would also have to be bona fide. Even if I accept the more restrictive interpretation of the word "reasonable" employed by the Court of Appeal, I am nevertheless of the opinion that the individualized approach adopted by that court is not justified. The subjective requirement obliges the employer to establish that the employer had a sincerely held belief that the requirement was reasonably necessary for the adequate performance of the work and was not adopted for any ulterior or extraneous reasons. The objective standard requires the employer to establish that, apart from his belief, the requirement is in fact reasonably necessary. In both the subjective and objective applications of the test, the reasonableness of the requirement is vital. The elimination of the subjective element, which is an additional burden imposed on an employer who seeks to avail himself of the defence, cannot transform the defence from one that requires a generalized approach to one that requires a specific examination of individual circumstances. Indeed, the Court of Appeal recognized that this difference in the wording of the Ontario and Saskatchewan legislation was not a proper basis for the interpretation of s. 16(7). Accordingly, subject to the effect of the Regulations, the interpretation placed on the Ontario section by this Court in Etobicoke is applicable as well to s. 16(7) of the Code.

The Court of Appeal quite properly points out that the Regulations seek to define the ingredients of the defence, an important element of which is exclusivity in relation to the age group that the employer desires to retain as his or her employees. It must be observed, first, that the definition provided by the Regulations is itself not exclusive. It states that "(b) `reasonable occupational qualification' means, inter alia, a qualification . . ." [emphasis added]. Accordingly, if there is no incompatibility between the definitions in the Regulations and the definition approved in Etobicoke, compliance with either will meet the test of a bona fide occupational qualification. In my opinion, there is no such incompatibility. The employer can therefore justify the impugned policy either by bringing it within the enumerated definitions or the Etobicoke definition. The Board interpreted s. 16(7) of the Code by applying to it the definition approved in the Etobicoke case and correctly found that the City had justified its mandatory retirement policy on this basis.

This conclusion is also supported on a proper interpretation of the definitions in the Regulations. The definitions in paragraphs 1(b)(i) and (iii) are satisfied if the employer shows that it was necessary to hire persons in one age group exclusively in order that the essence of the business operation is not undermined, or in order to ensure that the duties of the job can be performed safely. The requirement in question provides that only employees who are in the age group below age sixty are to continue in their employment. The Regulation requires that the employer establish that this is necessary either in the interests of the essence of the business operation or safety. The question arises as to the standard with which the employer must establish necessity. In my opinion, in view of the words used in the Code, the standard must be one of reasonableness. To interpret the Regulations otherwise would conflict with the Code. It would also conflict with the general nature of this defence, to which I have referred above. Indeed it would virtually read it out of the statute. In my opinion, therefore, the Board did not err in applying the Etobicoke definition in determining whether the defence of reasonable occupational qualification and requirement had been made out.

A similar conclusion was reached by the Manitoba Court of Appeal in Re City of Winnipeg and Ogelski (1986), 1986 CanLII 4057 (MB CA), 31 D.L.R. (4th) 161. In that case, the Etobicoke test was held to be the proper one in Manitoba even though the Manitoba legislation referred to a "reasonable occupational qualification" rather than a "bona fide occupational qualification".

Individualized Testing

The argument that individualized testing is a prerequisite to a successful defence under s. 16(7) and the Regulations is essentially the argument that the employer must justify the impugned requirement on an individual basis. In Bhinder v. Canadian National Railway Co., supra, at p. 589, McIntyre J. said:

To conclude then that an otherwise established bona fide occupational requirement could have no application to one employee, because of the special characteristics of that employee, is not to give s. 14(a) a narrow interpretation; it is simply to ignore its plain language. To apply a bona fide occupational requirement to each individual with varying results, depending on individual differences, is to rob it of its character as an occupational requirement and to render meaningless the clear provisions of s. 14(a). In my view, it was error in law for the Tribunal, having found that the bona fide occupational requirement existed, to exempt the appellant from its scope.

Wilson J. in a concurring opinion was of the same view. At page 580 she stated:

With respect, I do not think it is open to us under the statute to give the words bona fide a meaning which would have the effect of nullifying a provision which says that an employer will not be guilty of a discriminatory practice if the requirement he attaches to the job is a genuine requirement of that job. The purpose of s. 14(a) seems to me to be to make the requirement of the job prevail over the requirement of the employee. It negates any duty to accommodate by stating that it is not a discriminatory practice.

The legislature, in my view, by narrowing the scope of what constitutes discrimination has permitted genuine job-related requirements to stand even if they have the effect of disqualifying some persons for those jobs.

In Brossard (Town) v. Quebec (Commission des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279, the Court dealt with the Quebec Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12. Beetz J., elaborating on the Etobicoke test of reasonable necessity, held, at p. 312, that an occupational requirement must be properly designed to ensure that the requirement is met without the imposition of an undue burden upon those to whom it applies. He further held that this allows an examination of the reasonableness of the means the employer chooses to test for the presence of the requirement for the employment in question.

In Air Canada v. Carson, 1985 CanLII 5499 (FCA), [1985] 1 F.C. 209, the Federal Court of Appeal addressed an allegation that Air Canada's practice of refusing to hire new pilots over the age of 27 was discriminatory. Mahoney J. for the majority stated, at p. 217:

Thus, in asking what is reasonably necessary to ensure the safe performance by pilots of their duties as they age, it seems entirely reasonable to enquire if it is not possible or practical to deal with those pilots on an individual basis rather than preventing their initial employment by a blanket refusal to hire.

In my opinion, these cases point the way to the proper approach with respect to individual testing. While it is not an absolute requirement that employees be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing. If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it.

In this case, Bayda C.J.S. held that the Board had erred in law in failing to consider the efficacy of individualized functional testing as a relevant factor in the evaluation of a s. 16(7) defence. He focussed, at p. 252, on the following passage in the Board's reasons:

The approach to the problem advocated by the two [expert] witnesses may be reasonable. However, the issue to be determined in this matter is not whether a method of functional testing should be adopted but whether or not age is a reasonable occupational qualification and requirement for the position of fire fighter and/or Fire Marshall. [Emphasis added.]

With respect to the Chief Justice, I cannot conclude that the emphasized words represent a finding of law by the Board that the efficacy of functional testing is irrelevant to a s. 16(7) defence, particularly since the Board continued after the quoted passage to consider at length the evidence of the parties' experts, and ultimately made the following finding:

The safe and efficient performance of a fire fighter's duties is imperative especially where a situation exists involving danger to the life of a member of the community or to a fellow fire fighter. It is my opinion that there is no reliable testing procedure that will accurately determine how an individual will react or be able to cope with an emergency situation.

If the efficacy of functional testing had been thought by the Board to be irrelevant as a matter of law, then it would not have gone on to consider the evidence of the parties' experts or to make the finding of fact referred to.

It was the role of the Board, admittedly a very difficult one given the complexity and divergence of medical views on the subject, to determine if individualized testing was feasible. The Board concluded that this was not the case. In my opinion, the Board correctly applied the law, found as a fact that there was no practical alternative available to the appellant, and concluded that in adopting the policy with respect to retirement at age sixty, the employer was acting reasonably. No error of law having been committed by the Board, the Court of Appeal was wrong to reverse its decision.

Section 16(4)

In view of the conclusion I have reached with respect to the interpretation of s. 16(7) of the Code, it is unnecessary to deal with the application of s. 16(4) to the facts of this case.

Section 18

The final issue concerns the allegation that the Union violated s. 18 of the Code by discriminating against Craig. For ease of reference I repeat s. 18:

18. No trade union shall exclude any person from full membership or expel, suspend or otherwise discriminate against any of its members, or discriminate against any person in regard to employment by any employer, because of the race, creed, religion, colour, sex, marital status, physical disability, age, nationality, ancestry or place of origin of that person or member.

Bayda C.J.S. held that the provisions of the Code do not contain a reasonable occupational qualification exemption for unions analogous to that provided to employers by virtue of s. 16(7). Therefore, the Union was held to be in violation of s. 18 as soon as a prima facie case of discrimination was made out. This interpretation leads to the anomalous result that a union might be liable for agreeing to a discriminatory practice while the employer who formulates and enforces it is not.

Such an unfair result does not appear to reflect the overall intention of the Code. A more logical and consistent interpretation would be that there is no unlawful discrimination by a union contrary to s. 18 if there is no unlawful discrimination by the employer. The respondent, Human Rights Commission, conceded that if the employer does not discriminate within the meaning of the Code by virtue of s. 16(7), then the union has not negotiated a term whereby the employer must discriminate, and therefore the union has not itself discriminated in relation to employment. I agree with this concession. If a defence is made out under s. 16(7), there is no discrimination by the employer. There cannot therefore be discrimination by a union that has merely agreed to a non-discriminatory act by an employer. Therefore, the Fire Fighter's Union has not discriminated against Craig contrary to s. 18 of the Code.

Disposition

The appeals are allowed with costs both here and in the Court of Appeal, the judgment of the Court of Appeal is set aside, and the judgment of Maher J. and the decision of the Board are restored.

Appeals allowed with costs.

Solicitor for the appellant City of Saskatoon: Theresa M. Dust, Saskatoon.

Solicitors for the appellant The Saskatoon Professional Fire Fighters Union, Local 80: Mitchell Taylor Mattison Ching, Saskatoon.

Solicitor for the respondents: Milton C. Woodard, Saskatoon.