Large v. Stratford (City) [1995] 3 S.C.R. 733: Discrimination on basis of age -- Mandatory retirement -- Police officer -- Defence of bona fide occupational requirement -- Board of Inquiry finding that mandatory retirement at age 60 for police officers not a bona fide occupational requirement -- Whether Board properly applied subjective and objective tests for a bona fide occupational requirement

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Civil rights -- Discrimination on basis of age -- Mandatory retirement -- Police officer -- Defence of bona fide occupational requirement -- Board of Inquiry finding that mandatory retirement at age 60 for police officers not a bona fide occupational requirement -- Whether Board properly applied subjective and objective tests for a bona fide occupational requirement -- Ontario Human Rights Code, R.S.O. 1980, c. 340, s. 4(6).

A police officer who was obliged to retire at age 60 filed a complaint with the Ontario Human Rights Commission alleging that the age 60 mandatory retirement contravened the 1980 Ontario Human Rights Code on the grounds of age discrimination. The mandatory retirement policy had been adopted, and later included in the collective agreement, in response to the demands of the police union. The Board of Inquiry held that the age 60 mandatory retirement for police officers was not justified as a bona fide occupational requirement ("BFOR") under the Code. The Board found that neither the subjective nor the objective test for a BFOR had been satisfied. With respect to the subjective test, the Board concluded that while the policy was not adopted for any ulterior purpose, it was not established that, at the time of its adoption, the employer had a sincerely held belief that the policy was imposed in the interests of the adequate performance of the work. Applying the objective test, the Board concluded that the policy was not reasonable, stating that while the scientific evidence relating to the risk of cardiovascular disease and lack of aerobic capacity supported the reasonableness of the rule, the risk could be avoided by individual accommodation in the form of adjustments to the work of those in the risk category. Both the Divisional Court and the Court of Appeal upheld the Board's decision.

Held: The appeal should be allowed. The mandatory retirement policy is justified as a BFOR.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The purpose of the subjective element for a BFOR is to ensure that a discriminatory rule was adopted for a valid reason, as an occupational requirement, and not for a prohibited, discriminatory reason. Usually, this goal will be realized and the subjective element established by evidence that the employer honestly believed that the qualification or requirement was necessary for the safe and/or effective carrying out of the work. In this case, in insisting on evidence as to the employer's state of mind, the Board and the courts below applied the subjective test too rigidly against the employer. In some circumstances, the subjective element can be satisfied when, in addition to satisfying the objective test, the employer establishes that the rule or policy was adopted in good faith for a valid reason and without any ulterior purpose that would be contrary to the goals of the Ontario Human Rights Code. Thus, in a case in which the work-related requirement is the result of a union-driven term in a collective agreement, if both parties acted in good faith and arrived at an agreement that is shown to be reasonably necessary so as to satisfy the objective test, an employer can satisfy the subjective element without proof of a sincerely held belief in the necessity of the requirement. In such a case, however, the term in the collective agreement must not have been adopted for an ulterior or discriminatory purpose by the union. Here, the Board found that the employer acted honestly and without an ulterior motive in entering into the collective agreement. Since there is no suggestion that either the employer or the union was motivated by any ulterior motive, the purpose of the subjective test is satisfied.

With respect to the objective test, it is an error to equate individual accommodation with the requirement relating to reasonable alternatives. The latter is fundamental to the concept of a BFOR defence. Justification of a general rule that treats all employees as having the same characteristics, notwithstanding that some will not, is dependent on proof that it was not practical to identify and exempt from the general rule those who lacked the requisite characteristics. Since the Board found that individual testing was not feasible, the employer had discharged the obligation of showing that individual assessment was impractical and, therefore, a general rule was necessary. The alternative of individual accommodation is an impermissible extension of the principles in Bhinder, Saskatoon and Alberta Dairy Pool and is inconsistent with the concept of a BFOR defence as explained in those cases. It is an alternative that requires that the circumstances of each employee to whom the rationale of the rule applies be examined and that each employee's duties be adjusted so as to render the rule unnecessary. This alternative does not respond to the question as to why a general rule which includes some who do not share the common characteristics was necessary. There was a preponderance of evidence in this case to support a finding that the combination of the risk of cardiovascular disease and the decline of aerobic capacity discharged the employer's obligation with respect to the objective element of the BFOR. Subject to the influence of the concept of individual accommodation, the Board's reasons should be interpreted as having made this finding.

Both the subjective and the objective elements of a BFOR defence having been established, the appellants are entitled to a dismissal of the complaint.

Per L'Heureux-Dubé and McLachlin JJ.: The Board did not import elements of the objective test into the subjective test. The Board was not interested in whether the appellants' reason for implementing the retirement policy was rational per se. Its concerns were whether there was any evidence of a "sincerely held belief" that the retirement policy was necessary in the interest of the adequate performance of police force work. Such a determination was clearly envisaged as a legitimate component of the subjective test.

Where a policy has been adopted as part of the collective bargaining process, in response to demands by the employees, it is the "sincerely held belief" of the employees that the policy was necessary which is more relevant to the subjective test. The employer often will not have a "sincerely held belief" that the policy is needed, other than a belief that it is needed to satisfy the union. However, the absence of improper motives on the part of employees and management cannot alone be sufficient to meet the subjective test. A general occupational requirement cannot be considered to be bona fide, within the meaning of human rights legislation, if it was adopted blindly or without due regard for the individual rights of the persons affected. Therefore, where a general occupational requirement is adopted at the behest of employees, such requirement satisfies the subjective test if (1) there is no evidence of ulterior or discriminatory motive on the part of the employees in demanding the requirement; (2) the employees turned their minds to the question of whether the requirement was warranted, in light of its potentially discriminatory nature, and possessed a "sincerely held belief" in its necessity; and (3) the employer turned its mind to the question of whether the requirement was warranted, in light of its potentially discriminatory nature, and did not have an ulterior or discriminatory motive in acquiescing in the employees' demand. Had the Board applied the correct principles of law in this case, the impugned provision would satisfy the subjective test.

The objective test is also satisfied. While the possibility of accommodation is not relevant once a BFOR is established, it is relevant to the determination of whether a rule constitutes a BFOR. In this case, however, it was not demonstrated that accommodation would have been possible. Moreover, sufficient evidence was presented to justify the mandatory retirement provisions as reasonable in light of the duties performed by police officers.

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