Saskatchewan (Human Rights Commission) v. Moose Jaw (City), [1989] 2 S.C.R. 1317

The City of Moose Jaw and The Moose Jaw Fire Fighters Association, Local 553 Appellants

v.

The Saskatchewan Human Rights Commission and Roy Day Respondents

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

File No.: 20501.

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 -- Labour contract providing for mandatory retirement for fire fighters -- Alleged discrimination on the basis of age -- Defence of bona fide occupational qualification -- Fire fighter retired -- Whether or not City had established "reasonable" occupational qualification defence -- The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 16(7).

Respondent Day was a fire fighter with the City of Moose Jaw who was retired pursuant to a collective agreement. Both the City and the Union had declined to grant Day an extension of his retirement date as provided for in the collective agreement. As a result Day filed a complaint with the Saskatchewan Human Rights Commission alleging a violation of the prohibition against discrimination on the basis of age contained in s. 16(1) of The Saskatchewan Human Rights Code.

The Board of Inquiry appointed pursuant to the Code held that the City and the Union had discriminated against Day on the basis of age, contrary to ss. 16(1) and 18 of the Code respectively, and that the s. 16(7) defence of "reasonable occupational qualification and requirement" had not been made out. The Board's decision was reversed on an appeal taken to the Saskatchewan Court of Queen's Bench. Day died before a further appeal to the Court of Appeal was heard. That Court permitted the appeal to proceed on the initiative of the Commission, allowed the appeal and restored the order of the Board of Inquiry.

Held: The appeal should be allowed.

The controversy on which this proceeding was founded disappeared on Day's death. Both the Court of Appeal and this Court properly exercised their discretion and heard the appeal notwithstanding that it was moot.

The City established that its mandatory retirement policy was a reasonable occupational requirement within the terms of s. 16(7) of the Code. The issues of law which this appeal shared in common with Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 000, were resolved in that case.

Cases Cited

Applied: Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 000; Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202; referred to: Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (1976).

Statutes and Regulations Cited

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, ss. 16(1), (7), 18, 30(1)(a), 32(1).

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

APPEAL 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, 87 CLLC {PP} 17,024, allowing an appeal from a judgment of the Saskatchewan Court of Queen's Bench (1984), 1984 CanLII 2643 (SK QB), 33 Sask R. 105, [1984] 4 W.W.R. 468, 84 CLLC {PP} 17,024, allowing an appeal from a decision of a Board of Inquiry created under The Saskatchewan Human Rights Code. Appeal allowed.

John Zimmer, for the appellant the City of Moose Jaw.

Ronald Hagan, for the appellant The Moose Jaw Fire Fighters Association, Local 553.

Milton C. Woodard, for the respondents.

//Sopinka J.//

The judgment of the Court was delivered by

SOPINKA J. -- The facts in this appeal, and the issues it raises, are virtually identical to those in Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 000.

Facts

The respondent Day commenced employment as a fire fighter with the appellant City of Moose Jaw ("the City") in 1947. A collective agreement entered into in 1974 by the City and the appellant The Moose Jaw Fire Fighters Association, Local 553 ("the Union"), provided for a gradual reduction in the mandatory retirement age for fire fighters, from sixty-five to sixty over a ten-year period. Pursuant to the collective agreement Day was retired at the end of February 1980, at age sixty-two. Both the City and the Union had declined to grant Day an extension of his retirement date as provided for in the collective agreement. As a result Day filed a complaint with the Saskatchewan Human Rights Commission alleging a violation of the prohibition against discrimination on the basis of age contained in s. 16(1) of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 ("the Code").

Board of Inquiry

The Board of Inquiry (the "Board") appointed pursuant to the Code held that the City and the Union had discriminated against Day on the basis of age, contrary to ss. 16(1) and 18 of the Code respectively, and that the s. 16(7) defence of "reasonable occupational qualification and requirement" had not been made out.

The Board first concluded that Day's mandatory retirement upon attaining age sixty-two amounted to prima facie age discrimination. The central issue for the Board's consideration was the proper interpretation of the words "reasonable occupational qualification and requirement" in s. 16(7) of the Code, as defined in s. 1(b) of Saskatchewan Regulation 216/79. The Board held that the standard of proof to be applied in considering a s. 16(7) defence is the ordinary civil standard of proof on a balance of probabilities, and that the burden of proof is borne by the employer. The Board held further that this Court's decision in Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 ("Etobicoke"), was binding upon it. It is the Board's application of Etobicoke that has precipitated the appeal now before us.

The Board took the view that the absence of the term "bona fide" in the Saskatchewan legislation, and the presence instead of the term "reasonable", mandated that the subjective aspect of the test enunciated by McIntyre J. in Etobicoke not apply in relation to the s. 16(7) defence, and that, therefore, it was irrelevant whether the occupational requirement in question was set honestly and in good faith, or otherwise. The Board thus held that the objective aspect of the test in Etobicoke was the operative test under s. 16(7). That test, set out in Etobicoke by McIntyre J. at p. 208, requires that an employer against whom a prima facie case of discrimination has been made out show that the impugned qualification or requirement is:

... 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.

The Board's interpretation of the Saskatchewan legislation and its application of Etobicoke are contained in the following portions of its reasons for decision:

It is the Board's view that the case law establishes that it is still necessary for the employer to show that all members of the restricted class ... had the intolerable characteristic or that the incidence in that group was so great and not sufficiently identifiable as to make the risks from continuing to employ members of the group intolerable in the circumstances. It is the Board's view that the wording of this test, although taken from the Tamiami decision was adopted by the Supreme Court of Canada in the Etobicoke case when the Court made reference to `sufficient risk of employee failure'.

The American decision referred to by the Board is the judgment of the United States Court of Appeals in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). The Board continued its reasons by propounding a test:

From its review of the case law the Board concludes that in order to establish a reasonable occupational qualification exception within the meaning of Section 16(7) of the Code the Respondent must meet the following requirements:

(a)In situations where employment involves risk to the public, which includes the case before the Board, the Etobicoke case establishes the test as: "whether the evidence adduced justifies the conclusion that there is sufficient risk of employee failure in those over the mandatory retirement age to warrant the early retirement in the interests of safety of the employee, his fellow employees and the public at large".

(b)That, in attempting to meet this burden, evidence of a medical and scientific nature will be considerably more persuasive than impressionistic evidence.

(c)That the burden of proof, which is on the Respondent is no less in "public risk" situations, but merely that the Respondent is allowed to establish risk as opposed to inability and to establish that risk on the balance of probabilities.

(d)That before risk of employee failure can be identified with a certain class it must be shown that the characteristics creating the risk either pervade the entire class or that those members of the class having such characteristics cannot be sufficiently identified through testing or other means in order that they might be retired.

(e)That what will amount to "sufficient risk" must be determined in relation to the severity of the consequences, so that less increased risk might establish the exception where the results could be catastrophic, such as in the transportation cases whereas greater risk might not be sufficient in situations where there is more possibility of backup and support such as in a group or team type of work.

(f)That the imposition of the requirement must be reasonable, that is a reasonable solution to the presence of the risk which needs to be minimized.

The Board then canvassed the evidence of the various experts called by both the appellants and the respondents in order to determine if the above test had been met on the facts of this case. The Board recognized that fire fighting was an arduous task, but stated that the appellants had not demonstrated that there was sufficient risk of employee failure in those over the mandatory retirement age to warrant the retirement of Day at age sixty-two. The Board appeared to impose a burden on the employer, again adopting principles from the Tamiami decision, that the employer prove that it is "impossible or highly impractical" to conduct individualized testing. However, the Board found as a fact, on the basis of the extensive record before it, that individual performance testing to eliminate those who would be unable to perform the tasks of a fire fighter was feasible:

The Board concludes that, even though there was no burden on it to do so, the Commission has established on a balance of probabilities that individual firefighters at high risk of having a CHD [coronary heart disease] event can be detected and removed from the firefighting force without a blanket resort to age and at a cost which would not be prohibitive.

What the Human Rights Code requires in a case such as this is a balancing of the right of each individual employee to continue to work in spite of his age against the risk to the public and to other employees created by the nature of the duties to be performed. This Board has taken its obligation to balance the right against the risk extremely seriously and is satisfied that the risk of employee failure can be adequately reduced by performance testing and screening for potential CHD events through medical histories followed by possible tread mill stress testing.

In view of the test set out by the Board this finding resulted in the conclusion that the s. 16(7) defence had not been made out.

Court of Queen's Bench (1984), [1984 CanLII 2643 (SK QB)](https://www.canlii.org/en/sk/skqb/doc/1984/1984canlii2643/1984canlii2643.html), 33 Sask. R. 105

An appeal from the Board's decision was taken to the Saskatchewan Court of Queen's Bench pursuant to s. 32 of the Code, according to which appeals may be taken only on questions of law.

Matheson J. held that the Board erred in law in adopting a test for a reasonable occupational qualification modelled on the American test in Usery v. Tamiami Trail Tours, Inc., supra, and that the Tamiami test had not been adopted by this Court in Etobicoke. Matheson J. rejected the assertion that the employer must show that all members of the restricted class must possess the "intolerable characteristic", as this would involve placing an impossible burden upon employers. As well, he held that nothing in Etobicoke suggested that the employer need establish, in the Board's words, that "... the incidence in that group was so great and not sufficiently identifiable as to make the risks from continuing to employ members of the group intolerable in the circumstances."

Matheson J. held that the Board erred in law when it concluded that the respondents [appellants herein] failed to displace the burden of showing that functional testing on an individualized basis was "impossible or highly impractical". As a consequence of this error Matheson J. reversed the Board's decision and dismissed Day's complaint.

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

A further appeal was taken to the Court of Appeal for Saskatchewan. Before the appeal was heard, the respondent Day died. However, Bayda C.J.S., speaking for the court, was of the view that the Saskatchewan Human Rights Commission is a party to all proceedings before a board of inquiry by virtue of s. 30(1)(a) of the Code, and any such party enjoys the right to appeal granted by s. 32(1) of the Code. The appeal was, therefore, permitted to proceed on the initiative of the Commission. This ruling was not challenged in this Court.

The judgment of Bayda C.J.S. in the present case has been reviewed in Saskatoon Fire Fighters, and it would serve no purpose to repeat that review here. In his conclusion, Bayda C.J.S. dealt specifically with the circumstances of the Day complaint, as follows at p. 255:

As for the Day case, the Board, although at one point in its reasons appeared to state the proper test, proceeded to apply a modified Etobicoke test. In so doing, however, it in large measure applied the same principles one would need to apply to determine the existence of the element of exclusivity required under the Saskatchewan Regulations. The fact that the Board did not specifically say it was doing that does not affect the result it reached. The Board found, in effect, that the employer did not discharge the onus upon him to prove exclusivity of the unrestricted age group and concluded that the employer did justify the discrimination the Board initially found. This was the proper conclusion under Saskatchewan law. The Board was right to hold that a violation of s. 16(1) occurred. The appellate judge was wrong to reverse the Board's decision.

Consequently, the Court of Appeal set aside Matheson J.'s decision, and restored the order of the Board of Inquiry.

Disposition

Upon the unfortunate death of the respondent Day, the controversy upon which this proceeding was founded disappeared. Both the Court of Appeal and this Court heard the appeal notwithstanding that it was moot. This was an appropriate exercise of discretion in order to resolve issues of law which this appeal shared in common with Saskatoon Fire Fighters. Those issues have been resolved in the reasons in that case which need not be repeated here. It is sufficient to state that the Board erred in law in concluding as it did that the City had failed to establish that its mandatory retirement policy was a reasonable occupational requirement within the terms of s. 16(7) of the Code. I agree with Bayda C.J.S. that, without expressly saying so, the Board in effect applied the exclusivity test which has been held to constitute an error of law in Saskatoon Fire Fighters.

The issues of law having been resolved, in light of the circumstances outlined above, it is unnecessary to consider whether the matter should be remitted to the Board to be dealt with according to law. Accordingly, the appeal is allowed, the judgment of the Court of Appeal set aside, and the judgment of Matheson J. restored; costs to the appellants against the respondent Commission both here and in the Court of Appeal.

Appeal allowed with costs.

Solicitor for the appellant the City of Moose Jaw: John C. Zimmer, Moose Jaw.

Solicitor for the appellant The Moose Jaw Fire Fighters Association, Local 553: Ronald G. Hagan, Moose Jaw.

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