Saskatchewan (Human Rights Commission) v. Saskatoon (City) [1989] 2 S.C.R. 1297: Mandatory retirement -- Alleged discrimination on the basis of age -- Defence of bona fide occupational qualification

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] 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.

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