HomeMy WebLinkAboutRogers 07-07-09
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IN THE MATTER OF AN ARBITRATION
BETWEEN:
Corporation of the County of Simcoe Ambulance Service
("Emllloyer")
and
Ontario Public Service Union and its Local 911
(''Union'')
and
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The Crown in Right of Ontario
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l'- And In the Matter of the Grievance ofD.Rogers Relating to his Claim for
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Accommodation as an Attend Only Paramedic
("Intervenor")
Before:
M.R. Gorsky
Sole Arbitrator
'.;' 1'"'\
C.
Appearances:
For the Union
Richard A. Blair Counsel
For the Employer
Philip J. Wolfenden Counsel
For the Intervenor
David Strang
Counsel
The hearing was conducted in Barrie, Ontario on October 27,2006 and on December 11,
12 and 13, 2006
DECISION
Facts
The factual background relevant to this decision is not in dispute and is recorded
hereunder with attribution:
From the earlier submissions made by counsel for the intervenor, the Crown in the
interim proceeding referred to below:
The Union's Counsel, Mr Blair, has prepared a book of documents that the
Crown gathers are not disputed by the parties. Based on this material the Crown
takes as undisputed the following facts:
The grievor, Mr. Rogers, was employed by the employer is an ambulance
paramedic ["paramedic"] when he was diagnosed in 2002 with Choridal
Melanoma. This condition adversely affected his vision.
In 2002 Mr. Rogers had surgery that was successful in addressing his
condition. Following the operation his vision has been stable but reduced
from its pre-injury level. He has 20/200 vision in his left eye and 20120
vision in his right eye.
As a consequence of his vision loss Mr. Rogers is not able to obtain the
class F license required to drive an ambulance and is not now qualified to
dri ve an ambulance.
On November 26, 2004 Counsel for the Employer corresponded with
Ministry of Health and Long-Term Care ["Ministry of Health"] asking for
consideration in the matter of accommodating Mr. Rogers. The letter
noted that Mr. Rogers would appear to be disqualified from being an
ambulance paramedic by section 6(1)(f) of O. Reg. 257/00 [of the
Ambulance Act] since his reduced vision would not allow him to obtain a
class F drivers license.
On September 5, 2005 Mr. Rogers corresponded with Ministry of
Health '" to follow up his employer's correspondence noting that his
vision was 201200 in his left eye, well below the minimum standard of
20/50 required to obtain a class F drivers licence. He noted that he asked
his employer if he could "attend only" as a paramedic. [Ambulances are
staffed by two paramedics both of whom are required by the regulations
under the Ambulance Act to be qualified to both attend patients and drive
the vehicle.] He indicated that his Employer had agreed to this request. He
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asked the Ministry for an accommodation under the Ambulance Act.
[Above bracketed portion in original.]
On September 8, 2005 the Union under the signature of its President asked
that the requirement that Mr. Rogers have a class F driver's licence be
waived and requested that the regulation be reviewed "in light of the
Human Rights Code" [R.S.O. 1990, cap. H. 19 (the "Code")].
On September 22, 2005 the Union, the Employer and Mr. Rogers signed
an agreement providing for accommodation of Mr. Rogers in a position
outside the bargaining unit but expressly did not preclude Mr. Rogers
from seeking alternative accommodation.
On the same day, September 22, 2005, the Employer provided Mr. Rogers
with written assurance that in the event he obtained a waiver of the
requirement for a class F drivers licence from Ministry of Health and
Long-Term Care [Ministry of Health"] the Employer would return him to
a paramedic position._ (Emphasis in original.)
From the Union's submissions in the same proceeding:
1. The grievance, filed Sept. 4, 2005, states that:
Statement of Grievance
I grieve that the employer has failed to provide me with appropriate
workplace accommodation in accordance with the tenns of the collective
agreement, article 5.03 but not exclusively and the provisions of the
Ontario human rights code relative to the "Duty to Accommodate".
Settlement Desired
The board of arbitration orders the employer to declare that it failed to
comply with the terms of the collective agreement and the provisions of
the Ontario human rights code as identified above. Further, the Board of
Arbitration order the employer to compensate me with interest for all
financial losses arising from the non compliance and what the board of
arbitration deems appropriate with regard to additional compensation for
my loss of self esteem arising from the Employer's failure to comply with
the OHRC and place me back in Paramedic Services" [emphasis in
original]
2. ... [T]he grievance was denied at step 2 of the grievance procedure. The
Employer has taken the position that it has complied with its obligations
under the Ontario Human Rights Code, and that it has accommodated the
grievor appropriately in other positions, but cannot accommodate the
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grievor in a Paramedic role in light of the requirements of the Ambulance
Act and the Regulation thereunder which require a Class "F' license to be
employed as a Paramedic.
3. Subsequent to the denial of the grievance, the Union made application to
the Minister of Labour pursuant to the provisions of Section 49 of the
Labour RelationsfJ~t,a])d an arbitrator was appointed.
The grievance concerns an allegation that the Employer has failed to
accommodate the grievor, who as a result of a disability has become
ineligible for a class "F" license, by refusing to provide him with
employment as a paramedic and accommodating him in respect of his
inability to drive an ambulance (which is as a result of the absence of a
class "F" license, the license required by the Highway Traffic Act,
Regulation 340/94 to drive an ambulance). It is the position of the Union
in this matter that the grievor could be accommodated in a paramedic
position in an "attend only" capacity, that is to say, perfonning all of the
regular duties of a paramedic save for actually driving an ambulance. It is
not the position of the Union or the grievor in this grievance that the
grievor should be pennitted to drive an ambulance.
It is the position of the Union in this matter that to the extent that the
Ambulance Act and the Regulation thereunder prevent the employment of
the grievor as a paramedic in an "attend only" capacity, and prevent his
accommodation while still permitting him to perform the core duties of
paramedic without driving, the Act and the Regulation are in conflict with
the provisions of the Ontario Human Rights Code, and are therefore not
applicable in this circumstance and cannot be a barrier to the
accommodation [emphasis added].
The latter paragraph states the union's essential position with respect to
discrimination contrary to the Code.
I note, by way of clarification, that the waiver referred to above, in relation to the
employer's assurance of September 22, 2005, that in the event Mr. Rogers obtained a
waiver of the requirement for a class F drivers licence from the Ministry of Health, he
would be returned to a paramedic position, appears to be directed at a waiver allowing
him to drive an ambulance notwithstanding his disability, and not one where he would
be permitted to serve as a paramedic in an attend only capacity. I also note that Mr.
Wolfenden referred to an earlier understanding between the employer and Mr. Rogers
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that if the Ministry waived the driving requirement, thus opening up the possibility of
his serving as an attend only paramedic, this form of accommodation would be
considered. However, any ambiguity with respect to what the waiver was intended to
refer to was clarified in the position the employer took at the hearing and in the light of
(1) the evidence it adduced, and (2) the evidence called by the Crown, which it
suppeFted.-That is, that Mr. Ro-gers- had not been discnminated against with respect to
employment because of his vision disability contrary to the provisions of s. 5 of the
Code, and if I concluded that he was discriminated against, that his disability could not
be accommodated by allowing him to serve in an attend only capacity without its
suffering undue hardship in the form of the negative health and safety effects that would
be a consequence of such accommodation. To be fair to the employer, as Mr.
Wolfenden stated, it was "caught in the middle," in the sense that it could not disregard
the statutory framework under which it operated. To do so would jeopardise the entire
operation of its ambulance service. Its concerns were real and understandable.
Multi-Party Proceeding
In the "bottom line" interim decision released on May 27, 2006, I ruled, inter
alia:
1. The Crown has standing to intervene in this matter without the
limitations argued for by the Employer and supported by the union.
2. I have the jurisdiction to hear and detennine the matter, and to
accord the relief sought by the union and the grievor, as set out in para. 22
of the Union's submissions.
Counsel for the Crown was given the full rights of a party to present evidence and
argument on all of the issues before me, and to cross-examine witnesses, and did so.
More will be said below about the implications of this being a multi-party proceeding in
discussing Renaud v. Central Okanagan School District 23, [1992J 2 S.C.R. 970.
Statutes and Regulations Referred to:
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The following provisions of the Code were referred to:
Preamble
WHEREAS recognition of the inherent dignity and the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and peace in the
world and is in accord with the Universal Det1aratlOn of Human Rightsas proclaimed
by the United Nations;
AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of
every person and to provide for equal rights and opportunities without discrimination
that is contrary to law, and having as its aim the creation of a climate of understanding
and mutual respect for the dignity and worth of each person so that each person feels a
part of the community and able to contribute fully to the development and well-being of
the community and the Province;
AND WHEREAS these principles have been confirmed in Ontario by a number of
enactments of the Legislature and it is desirable to revise and extend the protection of
human rights in Ontario;
Therefore, Her Majesty, by and with the advice and consent of the Legislative
Assembly of the Province of Ontario, enacts as follows:
Employment
5.--(1) Every person has a right to equal treatment with respect to employment
without discrimination because of race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family
status or disability.
COllstructive discrimillatioll
11.--(1) A right of a person under Part I is infringed where a requirement,
qualification or factor exists that is not discrimination on a prohibited ground but that
results in the exclusion, restriction or preference of a group of persons who are
identified by a prohibited ground of discrimination and of whom the person is a member,
except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the
circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of
such ground is not an infringement of a right.
Idem
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(2) The Commission, the Tribunal or a court shall not find that a requirement,
qualification or factor is reasonable and bona fide in the circumstances unless it is
satisfied that the needs of the group of which the person is a member cannot be
accommodated without undue hardship on the person responsible for accommodating
those needs, considering the cost, outside sources of funding, if any, and health and
safety requirements, if any.
Disability
17.--(1) A right of a person under this Act is not infringed for the reason only that
the person is incapable of perfonning or fulfilling the essential duties or requirements
attending the exercise of the right because of disability.
Accommodation
(2) The Commission, the Tribunal or a court shall not find a person incapable unless
it is satisfied that the needs of the person cannot be accommodated without undue
hardship on the person responsible for accommodating those needs, considering the cost,
outside sources of funding, if any, and health and safety requirements, if any.
41.(1) Where the Tribunal, after a hearing, finds that a right of the complainant
under Part I has been infringed and that the infringement is a contravention
of section 9 by a party to the proceeding, the Tribunal may, by order,
(a) direct the party to do anything that, in the opinion of the Tribunal, the
party ought to do to achieve compliance with this Act, both in respect of
the complaint and in respect of future practices; and
(b) direct the party to make restitution, including monetary compensation, for
loss arising out of the infringement, and, where the infringement has been
engaged in wilfully or recklessly, monetary compensation may include an
award, not exceeding $10,000, for mental anguish.
Act binds Crow/1
47.--(1) This Act binds the Crown and every agency of the Crown.
Act has primacy over other Acts
(2) Where a provision in an Act or regulation purports to require or authorize
conduct that is a contravention of Part I, this Act applies and prevails unless the Act or
regulation specifically provides that it is to apply despite this Act.
The following provisions of the Ambulance Act, R.S.O. 1990, c. A.19 were referred to:
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1. (1) "ambulance" means a conveyance used or intended to be used for the transportation of
persons who,
(a) have suffered a trauma or an acute onset of illness either of which could endanger
their life, limb or function, or
(b) have been judged by a physician or a health care provider designated by a
physician to be-inan'unstable medical condition-and to require, while-being-
transported, the care of a physician, nurse, other health care provider, emergency
medical attendant or paramedic, and the use of a stretcher;
"emergency medical attendant" means a person employed by or a volunteer in an ambulance
service who meets the qualifications for an emergency medical attendant as set out in the
regulations, but does not include a paramedic or a physician, nurse or other health care provider
who attends on a call for an ambulance;
"paramedic" means a person employed by or a volunteer in an ambulance service who meets
the qualifications for an emergency medical attendant as set out in the regulations, and who is
authorized to perform one or more controlled medical acts under the authority of a base hospital
medical director, but does not include a physician, nurse or other health care provider who
attends on a call for an ambulance;
The following provisions of Regulations to the Ambulance Act, O. Reg. 257/00 were
referred to:
1 (1) "advanced care paramedic" means a paramedic who holds the qualifications set out in
subsection 8 (2);
"volunteer" means a person who may receive an honorarium or other compensation but does
not receive a wage or salary.
5. (1) The operator of a land ambulance service shall not employ a person to provide patient
care, whether on a full-time or part-time basis, or engage a person to provide patient care as a
full-time volunteer, unless the person is a paramedic who,
(a) obtained, before January 1,2002, the qualifications of an emergency medical care
assistant referred to in subsection 7 (3); or
(b) holds the qualifications of an advanced emergency medical care assistant referred
to in subsection 7 (4).
(2) Despite subsection (1), a person who does not meet the qualifications referred to in that
subsection may be employed by an operator of a land ambulance service to provide patient care
on a full-time basis if,
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(a) the person holds a valid Fundamentals of Casualty Care certificate issued by the
Director;
(b) since August 1, 1975, the person has been continuously employed on a full-time
basis by the operator or by an operator who previously provided land ambulance
services in the geographic area in which the operator now provides those services;
and
- (c) the person is authorized by the medical director of a base hospital program to
perform the controlled acts set out in Schedule 1.
(3) Despite subsection (1), a paramedic who does not hold the qualifications of an
emergency medical care assistant or an advanced emergency medical care assistant may be
employed by an operator of a land ambulance service to provide patient care on a part-time
basis beginning on January 1, 2002 and ending on December 31,2008 if the paramedic,
(a) is enrolled in an upgrading program offered by a College of Applied Arts and
Technology leading to qualification as an advanced emergency medical care
assistant; or
(b) has experience and qualifications that the Director considers to be equivalent to
those of a person who has successfully completed such an upgrading program.
(4) Despite subsection (1), a person who does not meet the requirements set out in clause 7
(4) (b) may be employed on a fulltime or part-time basis or engaged as a full-time volunteer by
the operator of a land ambulance service to provide patient care as an emergency medical
attendant for a period of 210 consecutive days after successfully completing a program referred
to in clause 7 (4) (a).
(5) The operator of a land ambulance service shall not engage a person as a part-time
volunteer unless the person is qualified as an emergency medical attendant.
6. (1) An emergency medical attendant and paramedic employed, or engaged as a volunteer, in
a land ambulance service shall ...
(c) subject to subsection (2), not have received, during the year immediately prior to the date he or she
commenced employment, six or more demerit points recorded on his or her record by the Registrar
of Motor Vehicles under the Highway Traffic Act;
(d) have maintained, during the two years immediately prior to the date he or she commenced
employment, and have continued to maintain during his or her employment, a valid driver's licence
under the Highway Traffic Act;
(e) not have, at any time during the three years immediately prior to the date he or she commenced
employment or during his or her employment, been prohibited under the Criminal Code (Canada)
from driving a motor vehicle in Canada;
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(f) hold and maintain a driver's licence that authorizes the person to drive an ambulance;
6 (3) A volunteer who is not required to, and does not under any circumstances, drive a land
ambulance is not required to comply with clause (1) (c), (d), (e) or (f).
The following provisions of the Regulations to the Highway Traffic Act, O. Reg. 340/94
were referred to:
2.(1) Subject to subsection (6) and sections 5, 6, 7, 8 and 25, a driver's licence of the class
prescribed in Column 1 of the Table is authority to drive a motor vehicle of the corresponding
class prescribed in Column 2 and the classes of motor vehicles prescribed in Column 3.
TABLE
Column 1
Class of Licence
Column 2
Class of Motor Vehicle
Column 3
Other Classes of
Motor Vehicle the
Driving of which is
Authorized
Class F
Class F - any ambulance, and any
bus having a designed seating
passengers, but not a school
purposes bus carrying passengers
Class G
17. (1) Qualifications required by an applicant for or a holder of a Class A, B, C, D, Ear F
driver's licence are that the applicant or holder, ...
G) has a visual acuity as measured by Snellen Rating that is not poorer than 20/30 with both eyes
open and examined together and not poorer than 20/100 in the weaker eye, with or without the aid
of corrective lenses; and
(k) has a horizontal visual field of at least 150 continuous degrees along the horizontal meridian and at
least 20 continuous degrees above and below fixation, with both eyes open and examined together.
(2) An applicant for or a holder of a Class A, B, C, D, E or F driver's licence who fails to
meet the qualifications referred to in clauses (1) (a) to (i) may, despite the failure, qualify for
the class of licence applied for or held if he or she demonstrates the ability to drive a motor
vehicle in the applicable class as safely as any person who meets those qualifications. ...
(2) An applicant for or a holder of a Class A, B, C, D, E or F driver's licence who fails to
meet the qualifications referred to in clauses (1) (a) to (i) may, despite the failure, qualify for
the class of licence applied for or held if he or she demonstrates the ability to drive a motor
vehicle in the applicable class as safely as any person who meets those qualifications. ...
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19. (1) The examinations and qualifications required of an applicant for or a holder of a driver's
licence by section 16, clauses 17 (1) (j) and (k), subsections 17 (4) and 18 (1), clause 18 (2) (a)
and sections 21.1 and 21.2 apply despite the Human Rights Code.
(2) Subsection 17 (2) applies despite the Human Rights Code.
The-Discrimination Issue--
In order to be in a position to consider the Union's request for accommodation, I must
first subject its claim to the analysis carried out in cases dealing with allegations of
discrimination under the Code. See British Columbia (Public Service Employee Relations
Commission) v. BCGSEU, [1999] 3 S.C.R 3 (UMeiorin"), below.
The analysis proceeds against a backdrop of developing jurisprudence which is referred
to in the recent case of Eagleson Co-Operative Homes, Inc. v. Theberge, [2006] 0.1. No. 4585
Div. Ct. in the reasons of RJ. Smith, 1:
en: 16 [7] The OHRC (Ontario Human Rights Code) is a fundamental law. The
Ontario legislature affirmed the primacy of the OHRC in the law itself, which is
applicable both to private citizens and public bodies. Further, the adjudication of OHRC
issues is no longer confined to the exclusive domain of the Ontario Human Rights
Commission: OHRC, Section 34 ... . The legislature has clearly contemplated that this
fundamental law could be applied by the Court and other administrative bodies and has
amended the OHRC accordingly [emphasis added].
<J[ 17 [8] In Tranchemontagne, [Tranchemontagne v. Ontario (Director, Disability
Support Program), [2006] SCR 14], the Supreme Court of Canada found that an
administrative Tribunal should apply the provisions of the OHRC when interpreting
statutes because:
(i) The Ontario Human Rights Code states that it has primacy over other
legislative enactments, which would include the provisions of the Co-
Operatives Corporations Act in this case; and
(ii) The recent amendments to the OHRC have removed the exclusive
jurisdiction over interpretation and the application of the Code, from the
Human Rights Commission.
In addition, the provisions of Section 1 1 (2) and Section 17(2) and (3) of the OHRC
specifically state that "a Court, as well as the Tribunal or the Commission, could apply
11
these provisions of the OHRC when deciding if the needs of a person with a disability
can be acconunodated without undue hardship."
<j[ 18 [9] Section 47(2) of the OHRC states that the OHRC is paramount over other
legislation. The Supreme Court of Canada has also held that the Human Rights Code
takes precedence over agreements and contracts: Syndicat Northcrest v. Amselem, [2004]
2 S.c.R. 551.
<j[ 21 [12] Based on the Supreme Court of Canada decision in Tranchemontagne,
which had not been released when the application was heard, and the circumstances of
this case, I find that the provisions of the Ontario Human Rights Code must be
considered and applied by the Co-op and by the Court hearing an application for a writ
of possession under the Co-Operative Corporations Act, before evicting a resident with
a disability for reasons related to the disability.
In my interim decision relating to whether I had jurisdiction to add the Crown as a party
to these proceedings, Mr. Strang argued that one of the reasons I should not do so was because
even if I found that Mr. Rogers had been discriminated against by the operation of s. 6 (1)(0 of
O. Reg. 257/00 of the Ambulance Act, I lacked jurisdiction to set aside the regulation. In
holding that it would be unnecessary for me to do so should I so find, I dealt with the objection
as was done in Malkowski v. Ontario (Human Rights Commission), [2006] o.J. No. 5140 (Div.
Ct.), G.D. Lane 1.:
<j[ 30 The Tribunal in Braithwaite {Braithwaite v. Ontario (Chief Coroner), [2005]
O.H.R.T.D. No. 31 (interim decision); [2006] O.H.R.T.D. No. 15] also discussed
Tranchemontagne ... to which the applicant referred us, and concluded that:
For the reasons given in [Tranchemontagne], it is apparent that the Tribunal does not
have jurisdiction to set aside legislation on the Constitutional grounds that it offends
the Canadian Charter of Rights and Freedoms... . However it is within the
jurisdiction of the Tribunal to say that,Jor the purpose of this case, subsection 10(2) of
the Coroners Act will not be applied in this case. The result of this will be, that
Coroners Inquests will be directed into the deaths of [the deceased] and the discretion
of the Chief Coroner will not be exercised... [emphasis added].
en 31 This decision demonstrates both the wide jurisdiction of the Tribunal and its limits. Not
being a fully constitutional document, the Code stops short of setting aside legislation, but the
Tribunal can exercise the power specifically given to it to apply the Code as prevailing over the
actual enactment in the Coroners Act, where the latter has a discriminatory effect. However, the
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Code does not authorize the addition to legislation of words that are not there in order to bring
the Building Code into compliance with the Code.
<JI 32 The Tranchemontagne decision... draws a distinction of importance. Bastarache J.
observes at paragraph 31, spealcing of the Code:
The Code emanates from the Ontario legislature. As I will elaborate below, it is one
thing to preclude~ta~utory tribunal from inxalidaling legislation enacted-by the
legislature that created it. It is completely different to preclude that body from
applying legislation enacted by that legislature in order to resolve apparent conflicts
between statutes.
<JI 33
Continuing the analysis at paragraph 36, Bastarache J. said:
Thus whether a provision is constitutionally pennissible and whether it is consistent with the
Code are two separate questions involving two different lcinds of scrutiny. When a tribunal or
court applies s. 47 of the Code to render another law inapplicable, it is not "going behind" that
law to consider its validity, as it would be if it engaged in the two activities denied the SBT by
s. 67(2) of the OWA. It is not declaring that the legislature was wrong to enact it in the first
place. Rather it is simply applying the tie-breaker supplied by, and amended according to the
desires of, the legislature itself. The difference between s. 47 of the Code and s. 52 of the
Constitution Act, 1982, is therefore the difference between following legislative intent and
overturning legislative intent.
<JI 34 These passages highlight the distinction in the present case between the Tribunal ruling
that an existing provision of the Building Code cannot prevail over the Code, on the one
hand, and the Tribunal purporting to add words to the Building Code that were not put
there by the legislature, on the other hand. In the first case, the Tribunal is following the
direction of the legislature in applying the supremacy of the Code over the language of
the other Act. In the latter case, the Tribunal would be overturning the legislative intent
not to place those words in the Building Code, a function which only the Charter can
authorize.
<JI 36 The Code is not a constitutional document. It has been described as quasi-constitutional,
and as more important than all others (save for the constitutional laws [See Note 18
below]), but it falls short of being a constitutional document entitling the Tribunal or the
Courts to disallow legislation or require changes to it. The farthest that the Code goes in
this direction is s. 47(2) which provides:
Where a provision in an Act or regulation purports to require or authorize
conduct that is a contravention of Part I, this Act applies and prevails unless
the Act or regulation specifically provides that it is to apply despite this Act.
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Note 18: See University of British Columbia v. Berg (1993), 102 D.L.R. (4th) 665 at 677-8
(S.C.C.); Insurance Corp. of British Columbia v. Heerspink (1982), 137 D.L.R. (3d) 219 at 229
(S.C.C.).
'lI 37 The language of the last clause of this section indicates that the Legislature has
reserved to itself, and to those it empowers to make regulations, the right to decide the
relationship betweentlTe Code and particularl"egiSTation. This is incompatible with any
right in the Tribunal to make that decision.
'lI 38 Section 9 of the Code prohibits any "person" from infringing a right under Part I of the
Code. That is a prohibition directed to conduct just as s. 47(2) is directed to conduct.
There is no person before the Court or the Commission whose conduct is in question;
the complaint is that the law itself infringes the Code. The remedy sought is that the
Commission send the complaint to the Tribunal so that the Tribunal can require the law
to be changed. For the above reasons, this objective can only be achieved through a
Charter challenge, for only the Charter. as a part of the constitution, enables the court
to strike down legislation or to read in provisions to make the law as written comply. It
is one thing to find that the Code prevails over a discriminatory provision in another
provincial Act or Regulation, but it is an entirely different matter to read in provisions
that are not there. The Legislature is sovereign and it would take clear language to
establish any tribunal with authority to add language to what the Legislature has done.
The Charter is such a document, but the Code is not. To read the Code as the applicant
asks is to grant to the Tribunal the power to amend legislation to bring it into
conformity with the Code. I cannot find that power in this language. (Emphasis added.)
As I explained in my Interim Decision, if I concluded that s. 6 (l)(f) discriminated
against Mr. Rogers and conflicted with the provisions of the Code, the section would only be
inapplicable in this case and would continue to apply in other ones, however, subject to the
same kind of scrutiny, should the same issue arise.
One of the differences between the parties concerning the applicable law with respect to
which line of cases applies to the issue relating to a finding of discrimination. Counsel for the
Crown submitted that the line of cases dealing with discrimination under the Charter should be
followed. union counsel referred to cases dealing with the issue developed under the Code as
establishing the appropriate standard. That there is no real conflict between the two approaches
is seen from a review of the cases in Arzem v. Ontario (Minister of Community and Social
Services), [2006] O.H.R.T.D. No. 17 (P. E. DeGuire (Vice-Chair)), concluding with the
following statement:
14
Cj[ 50 Since writing the above, the Tribunal notes the Ontario Divisional Court's conclusion
on a similar question posed by the parties in Ontario Secondary Teachers' Federation v. Upper
Canada District School Board et al. (2006), 78 O.R. 194. At issue in that case was whether the
arbitration board had erred in applying the Law [Law v. Canada (Minister of Employment
and Immigration), [1999] 1 S.C.R. 497)] analysis in the interpretation of the Code. In other
words, whether the approach to discrimination ought to be the same under the Code and the
Charter (emphasis added.). Writing for the panel, Swinton J. states:
There has long been [sic] a cross-fertilization between human rights legislation and s.
15 of the Charter. In [Andrews], the first major case interpreting s. 15 of the Charter,
the Supreme Court of Canada looked to human rights code jurisprudence to assist it in
detennining the meaning of "discrimination" (at pp. 174-75 S.C.R. ...). McIntyre 1.,
writing for the majority on this issue, was well aware that the Charter and the codes
were differently structured, as the codes contain specific defences (at p. 175
S.C.R. n.). Nevertheless, he found helpful the concepts of discrimination, which had
developed to date under the codes. [Para. 26]
Since Andrews, the concept of equality and discrimination in human rights codes has
reflected the developing equality jurisprudence under the Charter ... It is also noted
that both s. 15 and the codes pursue the same objective -- namely, the protection of
human dignity... Indeed the preamble to the Ontario codes states, in part ... [Para. 27J
In my view, the arbitration board in this case did not err in applying the analysis used
in Law. [Para. 28]
en 51 These are compelling reasons why the interpretation and application of the Charter
and human rights legislation ought to be the same. Against that backdrop, the Tribunal returns
to detennine whether the Commission and the Complainant have met the first of the four
contextual factors. (Emphasis added.)
The basis for finding that a person has been discriminated under the Code is explained
in Hogan v. Ontario (Minister of Health and Long- Term Care), [2006] O.H.R.T.D. No. 34,
where there was an allegation that certain persons were discriminated against because of
disability, contrary to the provision of s. 1 of the Code: para. 5, is as follows:
Every person has a right to equal treatment with respect to services, goods and facilities,
without discrimination because of race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
The adjudicator, in Hogan, stated:
15
<n 96 An interpretation of these provisions is required before determining how they apply to
the facts of these Complaints. Clearly, from the plain reading of section 1, no form of
discrimination is tolerated in the delivery of services, goods and facilities. But section 1 is not a
stand-alone provision. As an integral provision of Part I, in this case, it must be read together
with section 11, an interpretative and applied provision of the Code, to appreciate the extent of
the guarantee of the rights. No right, human right or constitutional right, is absolute.
<n 97 Section 11 is unique to Ontario. What the Legislature states in section 11 is this: if one
-- intr-oduces a rule that is--neutraion its face, as longasitnas an adverse impact on an Individual
or group who are identified by a prohibited ground and of whom the individual or group is a
member, there is an infringement of the corresponding right: constructive discrimination if you
will. Thus, to establish a prima facie case, the complainant need only show that he or she falls
within a prohibited ground, and sustained adverse impact by the requirement. If the
complainant does so, the burden shifts to the respondent to establish, on the balance, that the
rule is reasonable and bona fide in the circumstances or that it is declared in the Code, except
section 17, that such acts are not deemed to be discriminatory.
<n 98 Section 11 has two unique features, which are significant. First, and more significantly,
it presumes that there is an abridgement of one's right protected under any ground under Part I
of the Code, subject to specific qualifications, where a requirement is neutral on its face, but
has an adverse impact on an individual or group identified by a prohibited ground. Second, the
effect is that it forgoes the traditional way to establish discrimination of any right protected
under Part I. A significant corollary is, it negates the need to find a comparator as required by
the courts. (See Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 142; Law v.
Canada (Minister of Employment and Immigration), [1999J 1 S.C.R. 497; Lovelace v. Ontario
(1997),33 O.R. (3d) 735 (C.A.), affd, [2000J 1 S.C.R. 950; Grallovsky v. (Minister of
Employment and Immigration), [2000] 1 S.C.R. 703); and Hodge v. Canada (Minister of
Human Resources Development), [2004J 3 S.C.R. 357. Essentially, section 11 of the Code
facilitates the reconciliation of rights as well as determines whether the alternative is reasonable.
<J[ 99 It is apposite to iterate that there are two requirements under subsection 11(1), which
the respondent must meet. Simply stated, the respondent first must show the requirement is
reasonable, and that it is bona fide in the circumstances. In other words, the respondent must
show that there is a rational connection between the objective and the requirement. Second, if
that two-prong requirement is met, the respondent must go on to show, on the balance, that it is
unable to accommodate the complainant's needs without undue hardship. Thus, even if the
requirement is reasonable and bona fide, but the respondent fails to accommodate the
complainant up to the point of undue hardship, the necessary conclusion is there has been an
abridgement of the complainant's right. Notably, the Legislature cautions the Commission,
Tribunal or courts not to find a requirement reasonable and bona fide in the circumstances,
unless the respondent demonstrates that it cannot accommodate the complainant's needs
without undue hardship, giving effect to cost, outside sources of funding, if any, and health and
safety requirements, if any. It is appropriate to note that the requirement of "in the
circumstances," imposes an obligation on the trier of fact and law to adopt a contextual
approach in determining reasonableness and good faith [emphasis addedJ.
16
'lI 100 This interpretative and applied provision was given authority and prevalence in
Meiorin (British Columbia (Public Service Employee Relations Commission) v.
BCGSEU, [1999] 3 S.C.R. 3] at para. 22:
A different analysis applies to adverse effect discrimination. The BFOR defence does
not apply. Prima facie discrimination established, the employer need only show: (1)
that there is a rational connection between the job and the particular standard, and (2)
that it cannot further aceemmodate the claimantwithout incurring undUl:nnfrdsmp:
O'Malley, supra, at pp. 555-59, per McIntyre J.; Central Alberta Dairy Pool, supra, at
pp. 505-6 and 519-20, per Wilson J. If the employer cannot discharge this burden,
then it has failed to establish a defence to the charge of discrimination. In such a case,
the claimant succeeds, but the standard itself always remains intact.
'lI 101 At paragraph 22, McLachlin, C.J.c. describes the conventional approach in relation
to indirect discrimination. Here, the Court is discussing the B.C. Legislation in the employment
context, and refers to 24(2) of the Code, which deals with employment. In setting out the
unified approach, it is noted that the test is no different from section 11. Thus, it is reasonable
to conclude that the distinction between direct and indirect discrimination and the BFOR test as
set out in section 11 of the Code is still the appropriate test, at least ina non-employment
situation like the case at bar. The particular unified approach is set out in para. 54:
Having considered the various alternatives, I propose the following three-step test for
determining whether a prima facie discriminatory standard is a BFOR. An employer
may justify the impugned standard by establishing on the balance of probabilities:
1) that the employer adopted the standard for a purpose rationally
connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest
and good faith belief that it was necessary to the fulfilment of
that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment
of that legitimate work-related purpose. To show that the
standard is reasonably necessary, it must be demonstrated that it
is impossible to accommodate individual employees sharing the
characteristics of the claimant without imposing undue hardship
upon the employer.
I can find no basis for treating the facts before me differently because the allegation of
discrimination here arose in an employment context under s. 5 of the Code rather than s. 1 with
respect to services, as the relationship between s. 11 and those sections is the same.
17
A recent case dealing with when a comparator group is required to ascertain whether
prohibited discrimination has occurred is Moore v. British Columbia (Ministry of Education),
[2005] B.C.R.R.T.D. No. 580 (B.C.R.R.T. (R.M. MacNaughton), where the Chair of the
Tribunal said:
-<J[ 747 Many cases1)f discrimination arise because there has been a distinctionfnade,
intentional or not, based on grounds relating to the personal characteristics of an individual or a
group. The complainant seeks equal treatment. For example: disability insurance plans which
do not extend to pregnant women [See Note 362 belowJ; or provide differential benefits to
those who are mentally and physically disabled [See Note 363 belowJ; government imposed
rules on the entitlement to drive [See Note 364 belowJ; or who is covered by a benefit program
[See Note 365 below].
Note 362: Brooks v. Canada Safeway Ltd., [1989J 1 S.C.R. 1219
Note 363: Battlefords and District Co-operative Ltd. v. Gibbs, [1996J 3 S.C.R. 556
Note 364: Grismer v. British Columbia (Ministry of Attorney General, Motor Vehicle
Branch), [1999J 3 S.C.R. 868 ["Grismer"]
Note 365: Law, supra note 337
'If 748 In the context of those types of cases, a comparator group analysis is appropriate. A
finding of discrimination based on the imposition of a burden or the withholding of a benefit to
one person or group as opposed to another, is of necessity a comparative analysis. As Mr.
Justice McIntrye wrote in Andrews:
The concept of equality has long been a feature of Western thought ... It is a
comparative concept, the condition of which may only be attained or discerned by
comparison with the condition of others in the social and political setting in which the
question arises [See Note 366 below].
Note 366: [1989J 1 S.C.R. 143, at p. 164
<J[ 749 Our courts have, however, also recognized that discrimination may arise from a
failure to recognize and accommodate pre-existing differences. This kind of discrimination,
also referred to as adverse effect discrimination, is particularly relevant to disabled members
of our society, who may require different treatment in order to gainful! access to the benefits of
our society [emphasis added]. As outlined by the Supreme Court of Canada in Eaton v. Brant
(County) Board of Education, [[1996] SCJ 98; [1997J 1 SCR 241J :
The principal object of certain of the prohibited grounds [referring to s. 15 of the
rZ,n..to..l ic th.. ..l;Tn;n"t;"n "f rlic,.,;,.,..,;n"t;"n h" th.. Mt,;h"t;"n "f "ntn,..
18
characteristics based on stereotypical attitudes relating to immutable conditions such
as race or sex. In the case of disability, this is one of the objectives. The other equally
important objective seeks to take into account the true characteristics of this group
which act as headwinds to the enjoyment of society's benefits and to accommodate
them. Exclusion from the mainstream of society results from the construction of a
society based solely on "mainstream" attributes to which disabled persons will never
be able to gain access. Whether it is the impossibility of success at a written test for a
blind person, or-lhe need for ramp access to-a library, the discrimination-does not lie in
the attribution of untrue characteristics to the disabled individual. The blind person
cannot see and the person in a wheelchair needs a ramp. Rather it is the failure to
make reasonable accommodation, to fine-tune society so that its structures and
assumptions do not result in the relegation and banishment of disabled persons from
participation, which results in discrimination against them. The discrimination inquiry
which uses "the attribution of stereotypical characteristics" reasoning as commonly
understood is simply inappropriate here. It may be seen rather as a case of reverse
stereotyping, which by not allowing for the condition of a disabled individual, ignores
his or her disability and forces the individual to sink or swim within the mainstream
environment. It is recognition of the actual characteristics, and reasonable
accommodation of these characteristics, which is the central purpose of s. 15(1) in
relation to disability [See Note 367 belowJ.
Note 367: Eaton, supra note 361, at pp. 272-273 ...
l)f 750 Although these comments arose in the context of a Charter challenge, I find that they
are equally applicable to a case arising under the Code. As a result, the Code prohibition
against discrimination also requires different or special treatment that recognizes the special
needs of disabled individuals who have historically been excluded from full participation in
society. Inherent in considering a case of discrimination on the basis of a distinction, or
disparate treatment, where what is being sought is equal treatment, is a comparator group
analysis. However, in considering a case where the issue is not whether the claimant has been
treated equally but whether the actual characteristics of the person have been accommodated
so that they may access a benefit otherwise available in society, the application of a
comparator group analysis is unsuitable [emphasis added] .
l)f 751 Hence, in Eldridge [Eldridge v. British Columbia (Attorney General), [1997] 3
S.C.R. 624J the Supreme Court did not engage in a detailed examination of the appropriate
comparator group and, to the extent one can be discerned from the Court's reasoning, the
comparison that was made was with those accessing health care benefits who did not require
the assistance of an interpreter - hearing persons [See Note 368 belowJ.
Note 368: Eldridge, supra note 318, at para. 60
l)f 752 In such a case, the focus of the inquiry must be whether enough has been done to
ensure that the disadvantaged member of society has appropriate and meaningful access. In this
case, that involves asking whether enough has been done to ensure that Jeffrey and other SLD
students are able to access the benefits of the education service that is being offered. As
discussed in Real Canadian Superstore v. u.F.c. W Local 1400 [See Note 369 belowJ, in
19
relation to issues of access and participation for the disabled, the comparison must always be
between those who are disabled and those who are not.
Note 369: [1999] SJ. No. 777 (Sask. Q.B.) at para. 39
'j[ 753 The focus of this case is the supports that SLD children need in order to access a
universally available public education system. As I have already found, without supports and
accommodation, SLD children will not be ab~ tQ enjoy the benefits of that education. It is
important, in myView~not to confuse the nature of the service that is being sought with the
accommodation that is required to be able to access the service. Here the issue is the
accommodation and whether the Ministry and the District have done what they can, to the point
of undue hardship, to ensure access to the service. A comparator group analysis will not focus
the necessary attention on the accommodation aspect of this disability complaint. For these
reasons, I have concluded that a comparator group analysis is unnecessary.
In Moore, the Tribunal considered its position if finding the appropriate comparator was
required:
lJI 754 In the alternative, in the event that a comparator group analysis is required, I now turn
to consideration of the appropriate comparator group. Where applicable, the identification of
the appropriate comparator group is crucial to the outcome of the discrimination analysis. In
Granovsky v. Canada, ([2001] 1 S.C.R. 703, at para. 45}:
Mr. Justice Binnie wrote:
The identification of the group in relation to which the appellant can properly claim
"unequal treatment" is crucial. The Court established at the outset of its equality
jurisprudence in Andrews, supra, that claims of distinction and discrimination could
only be evaluated "by comparison with the conditions of others in the social and
political setting in which the question arises" ....
'j[ 755 The following principles for determining the appropriate comparator group were set
out by the Supreme Court of Canada in Hodge v. Canada (Minister of Human Resources
Development) [See Note 371 below]. First, the choice of the correct comparator is crucial, since
the comparison between the complainant and the comparator group permeates the analysis.
Second, while the starting point is the comparator chosen by the complainant, the adjudicator
must ensure that the comparator is appropriate and should substitute an appropriate comparator
if the one chosen by the complainant is not appropriate. Third, the comparator group should
mirror the characteristics of the complainant relevant to the benefit or advantage sought, except
for the personal characteristic related to the enumerated or analogous ground raised as the basis
for the discrimination. The comparator must align with both the benefit and the universe of
people potentially entitled to it and the alleged ground of discrimination. Fourth, a complainant
relying on a personal characteristic related to the enumerated ground of disability may invite
comparison with the treatment of those suffering a different type of disability, or a disability of
20
greater severity [See Note 372 below]. I note that the fourth principal is permissive in that it
broadens the comparator group that may be applicable in a complaint based on disability.
Note 371: [2004] 3 S.C.R. 357
Note 372: Hodge, supra note 371, at paras. 18,20,25,28,31 and 32
lJI 756 Mr. Moore submits that the appropriate comparator group is all children attending and
accessing educational services in publicscnOolSin British Columbia-who do not require
additional supports and accommodation in order to do so.
lJI 757 The District submits that the appropriate comparator group is other Sill students
either in the District or elsewhere in the public education system in BC receiving special
education services between June 1992 and June 1995. ...
lJI 760 While I accept that there may be more than one appropriate comparator group based
on the particular allegations of discrimination in a case, applying the Hodge criteria to this case,
I conclude that the comparator group selected by Mr. Moore is appropriate. That is: all students
attending public schools and accessing public education services in British Columbia, who do
not require additional supports and accommodations to do so. It is all such students that best
aligns with the benefit sought (access) and those entitled to it (all students). I reach this
conclusion for the following reasons.
lJI 761 The School Act establishes that the goal of our public education system is to enable all
learners to develop their individual potential; it contemplates delivery of universal education
services. As a result, it requires an assessment of each student's individual learning needs and
how they can best be met within the school system. The goal of special education services is to
ensure that sufficient supports are in place to allow a student with special needs to access the
core curriculum. In furtherance of that Ministry goal, the District developed a special education
policy and, at the relevant time, it provided:
... Within any school district there exist "exceptional children," children who have ...
needs sufficient to indicate that curriculum modification and/or special services must
be provided for them. The Board recognizes its commitment to provide appropriate
modifications and services and will provide them in such a way that each child is
guaranteed placement iD the most appropriate and least restrictive educational
environment available [See Note 373 below].
Note 373: Ex 4, Tab II, p. I
<j[ 762 The requirement for the development of IEPs, recommended by the Ministry in the
1985 Manual and required in the 1995 Manual, and the Special Needs Students Orders,
Ministerial Orders No. M638/95, M319/96 and MOl1/98, all point to the individual tailoring of
programs to allow a disabled student to access education services. The focus is on the needs of
the individual student and what interventions and supports are necessary for that student to
access education services like their non-disabled peers. (Emphasis added.)
21
lJI 763 ... That notion of formal equality has been recognized as not achieving true equality.
Rather, what is required in this context is that each student is assessed and provided with those
supports that are necessary to enable them, to the extent possible, to access educational services
like their non-disabled peers [See Note 374 below].
Note 374: Eaton, supra note 361, at para. 67
On the facts~fthe_case before me, the.J!~cgmmodation sought by~r--Rogers is
necessary to enable him to function as a paramedic. As noted, at para. 760 of Moore, there
"may be more than one appropriate comparator group based on the particular allegations of
discrimination in a case." In this case there is the group of volunteer ambulance paramedics
who are not required to drive, and serve in an attend only capacity, as a result of the provisions
of 6 (3) of O. Reg. 257/00 of the Ambulance Act: "A volunteer who is not required to, and does
not under any circumstances, drive a land ambulance is not required to comply with clause
(I) ... (f)." It is this comparator group that best mirrors the characteristics of Mr. Rogers
relevant to the benefit or advantage sought, "except for the personal characteristic related to the
enumerated or analogous ground raised as the basis for the discrimination." In these
circumstances, the different "employment" status of volunteer paramedics is irrelevant. What
matters is that volunteer and non-volunteer paramedics are expected to perform the same "job."
What differentiates a volunteer from Mr. Rogers is that he is disentitled to serve as an attend
only paramedic, whereas he could do so should he be accepted as a volunteer. He is the same
person, seeking to do the same job as an attend only volunteer paramedic, but is not allowed to
do so because of the effect of s. 6 (1) (t). The different treatment amounts to prima facie
discrimination. Cf. Ontario Nurses' Assn. v. Orillia Soldiers Memorial Hospital (1999),42 O.R.
(3d) 692.
I conclude that even in the absence of a comparator group, the failure of s. 6 (1) (f) of O.
Reg. 257/00 of the Ambulance Act to provide for the possibility of reasonable accommodation
to Mr. Rogers because of his visual handicap, so as to permit him to achieve equal access to the
paramedic job, amounts to substantive discrimination.
Counsel for the Crown argued that s. 6 (l)(f) of O. Reg. 257/00 of the Ambulance Act,
in requiring that Mr. Rogers hold a licence to drive an ambulance as specified in the Highway
22
Traffic Act, if he wished to be a paramedic, did not discriminate against him because he was
not thereby denied a service because of his handicap.
Union counsel characterized Mr. Rogers's grievance as being that he had been
discriminated against because of his physical disability contrary to the provision of s. 5 of the
- Code, the discrimination-being in the effectof s: o(1)(f) of O. Reg. 257100-of the Ambulance
Act in denying him the right to be accommodated: by permitting him to remain as a paramedic
with attend only duties. Although neutral on its face, the regulation was said to have had an
adverse impact on him as a person being part of a group identified by a prohibited ground. Put
a different way, the discrimination alleged was a failure within the regulation to recognize and
appropriately accommodate differences arising out of Mr. Rogers's handicap. Cf. Moore v.
British Columbia (Ministry of Education), [2005J B.C.H.R.T.D. No. 580 (H.M. MacNaughton):
lJ[ 736 The Law analysis arose in the context of a claim of discrimination seeking
equal treatment under a government program. It did not arise in circumstances where
the discrimination alleged was a failure to recognize and appropriately accommodate
difference. As I outline in my discussion of the appropriate comparator group below,
this is an important distinction. However, because, in my view, this is a case in which it
makes no difference whether the traditional analysis or the Law analysis is applied, it is
not necessary for me to explore this difference further. I agree with the statement in Law
that it will be a rare case in which differential treatment suffered by a person in a
protected group, such as the disabled, will not constitute discrimination in the purposive
sense [See Note 359 below] [emphasis added].
Note 359: Law, supra note 337, at para. 110.
Conceptually, and on the facts of the case before me, I can find no basis for treating Mr.
Rogers's claim of discrimination differently from the way it was dealt with in Hogan, in a non-
employment context.
The statement of McLachlin J. in Grismer remains the most informative in relation to a
determination of whether discrimination exists:
'If 12 The test for discrimination under the B.C. human rights legislation was recently
modified in Meiorin, supra. Neither the Member nor the reviewing courts had the benefit of that
test. The question before us is whether, applying the new test to the findings of fact of the
Member, an absolute prohibition on licensing people with H.H. and a less than 120 degree field
of vision, without the possibility of individual assessment, constituted discrimination.
23
The fact that Grismer arose in the context of denial of a service does not affect its
application in other contexts where a governmental agent has held firm to an absolute
prohibition against accommodation, in this case without considering whether it posed an
unacceptable health and safety risk.
The extent-te which a single standard-u-an~cending categories-now exists is articulated
in New Brunswick Human Rights Commission and Potash Corporation of Saskatchewan, Inc.,
2006 NBCA 74; [2006] N.BJ. No. 306: :
CJI 35 To summarize the Supreme Court's pronouncements in Meiorin and Grismer, the
Meiorin decision mandates that a unified approach and a revised three-step test to be applied to
adjudicating discrimination claims. Although developed in an employment context which
involved a BFOR defence, the Meiorin test was applied in Grismer to a different context in
which a different exemption was raised, namely a discriminatory practice arising out of a
complaint involving public services and a defence based on a bona fide and reasonable
justification [emphasis added]. Finally, the Court expressly stated in Grismer that the Meiorin
test applies to all claims for discrimination under the B.C. Human Rights Code. Therefore, to
my mind, the Court's pronouncements in Meiorin and Grismer must be considered in this
province in the context of the governing principles for the interpretation of the human rights
statutes. ...
An issue arose in Jeppesen v. Town of Ancaster, [2001] O.H.R.B.I.D. No.1 (Sandler,
Board of Inquiry), relied on by the Union, as to whether the complainant, Jeppesen, had been
discriminated against with respect to employment because of handicap by the respondents, the
Corporation of the Town of Ancaster, Fire and Emergency Services (lithe Service") and others
in contravention of sections 5(1) and 9 of the Code. Mr. Jeppesen, who had been a part-time
firefighter for the Service, applied for a full-time position pursuant to a posted notice which
spelled out the duties and qualifications required of successful applicants. These duties were
largely related to firefighting and fire prevention, but included "additional tasks and related
work as assigned e.g. ambulance duties." The qualifications, although largely related to
firefighting and fire prevention, included statutory preconditions to the operation of an
ambulance, most particularly, the possession of a valid and subsisting class F driver's licence.
Firefighters employed by the Service were obligated to staff the ambulance service provided by
the Town of Ancaster in furtherance of a contract with the Ministry of Health. This resulted in
a requirement that the town's ambulance be staffed. Although two employees were dedicated
24
only to the ambulance that was staffed 24 hours a day, in the result the arrangement meant that
all the full-time firefights were obligated to staff the ambulance.
The Board of Inquiry commented on:
The Legal ~apacity to Operate an Ambulance
<JI 37 Regulations to the Highway Traffic Act require that a person hold a class F licence or
its equivalent to drive an ambulance. Regulations to the Ambulance Act require that each
ambulance that responds to a call be staffed with a crew of at least two attendants. Both
attendants need to hold a valid licence to drive that ambulance. The rationale for this
requirement is obvious, given the likelihood that the attendants may have to reverse the roles of
driver and passenger to permit emergency work on a patient to continue during transport. As
well, one of the ambulance attendants may be called upon to drive another ambulance, for
example, where a second ambulance has been dispatched from a nearby region to provide
additional or a higher level of medical service to patients. [See Note 7 below]
Note 7: Though the Ancaster firefighters were qualified to provide a basic level of
ambulance service, other ambulance personnel were sometimes qualified to provide more
advanced medical assistance.
. The Board of Inquiry further noted:
<JI 40 In June 1997, Mr. Jeppesen held a class A licence with Z endorsement. This licence
was equivalent to a class D licence and permitted Mr. Jeppesen to drive fire trucks. As well,
this licence permitted Mr. Jeppesen to drive tractor-trailers and similar vehicles. Indeed, Mr.
Jeppesen was employed, in his full-time job, as a driver of such vehicles.
<JI 41 Mr. Jeppesen also held a class C licence, equivalent to a class F licence, which would
have permitted him to drive an ambulance. This had been acquired in October 1996.
<JI 42 Applicants for both class D and class F licences have to meet certain minimum visual
acuity requirements under the Highway Traffic Act regulations. Visual acuity, with or without
corrective lenses, of no poorer than 20/30 in the better eye and 20/50 in the weaker eye is
required. Regulations to the Highway Traffic Act permit the Ministry of Transportation to
waive these requirements for class D applicants. These regulations were enacted pursuant to
the Monocular Vision Pilot Project. [See Note 9 below] The same waiver provisions do not
exist for class F applicants.
Note 9: This pilot project has a limited duration. However, once accepted into the project, a person's licence will
continue to be renewed, if the person remains suitable for waiver.
25
While he was a part-time firefighter in 1995, Mr. Jeppesen was afflicted with
Histoplasmosis (PORS), an airborne fungal disease affecting his left eye. In Apri11997, fluid
buildup was detected in his left eye and his visual acuity had worsened. Surgery in the fall of
1996 stabilized his condition but did not result in the desired improvement. He had lost central
vision in the left eye but retained his peripheral vision in that eye and, for all practical purpo~e~,
could see as weIIas anyone with both eyes open. However, he no longer met the visual acuity
requirements for either class D or F licences.
On July 25, 1997, Mr. Jeppesen was offered one of the full-time fire-fighter positions
commencing on August 5, 1997. After voicing concerns over future problems that might arise
out his inability to meet the sight requirements for the Class F licence, he was informed that he
would be unable to obtain the full-time position without a Class F licence. He was further
advised that he would be kept at the top of the eligibility list so that he could have an
opportunity to "resolve" the problem that had arisen as a result of his being unable to secure an
F licence. Mr. Jeppesen was found to have "candidly revealed his difficulty [to the chief of the
ServiceJ before his employment status was finalized." It was acknowledged that Mr. Rogers,
in the case before me, had been similarly candid with the employer and with the
representatives of the Ministry of Health. [See <<][48 and <<][49.J
On August 5, 1997, the Chief of the Service informed Mr. Jeppesen by letter that he could
not offer him a position but added: "should the situation with respect to your medical
condition change, and you receive medical clearance, you will be considered for a position ... if
and when a position becomes available." This position is similar to that of the Employer in the
case before me, who indicated that it could only consider Mr. Rogers request if the licencing
problem could be resolved. [See <<][ 51.J
As in the case before me, Mr. Jeppesen applied for a vision waiver that enabled him to
obtain a licence but not an F licence for which no waiver was available. [See <<][56J Also, as in
this case, Mr. Jeppesen received a response from governmental authority, in his case the
Ministry of Transportation, that his request was refused because "it's the law." [See <<][ 54J
26
In Jeppesen (at '1[58) the Board of Inquiry noted that its seemed curious that the "effect
of the of the Highway Traffic Act regulations was that Mr. Jeppesen could be deemed capable
of driving a 45,000 lb. fire truck but incapable of driving an ambulance." As in Jeppesen, it
was employer's position that Mr. Rogers should have sought accommodation from the
province rather than from it.
Mr. Jeppesen requested accommodation by allowing him to only perform duties of a
firefighter without any requirement that he be required to drive an ambulance (at'J[ 59), which
he regarded as no longer being a bona fide qualification, given the number of available
firefighters.
Mr. Jeppesen's request was denied because he did not possess a valid F licence, which
was a condition of employment. The Chief of the Service testified that Mr. Jeppesen was a
good firefighter. It was only his inability to retain a class F licence that prevented the
Respondents from hiring him. [See'J[ 60.]
As in Mr. Rogers's case, Mr. Jeppesen found the immediate denial of his request deeply
distressing. Also, as in the case before me, the Chief of the Service in Jeppesen, explored the
issue with legal counsel and with government authority, but was advised that the class F
requirement could not be waived. [See'J[ 62.]
Further in Jeppesen the Board dealt with the subject of whether he had been
discriminated against:
1JI 124 The Respondents relied upon Belyea v. Canada (Statistics), [1990] C.H.R.D. No.1 to
support their argument that the requirement was not even prima facie discriminatory.
<<J[ 125 In Belyea, a Canadian Human Rights Tribunal considered a complaint against
Statistics Canada that it discriminated on the grounds of disability. Mr. Belyea alleged that
Statistics Canada refused to employ him as a census representative during the 1996 federal
census because he suffered from epilepsy, an allergy and a hernia condition. Statistics Canada
maintained that Mr. Belyea's failure to obtain the job was only related to his lack of a car. Even
if this could be described as discrimination, which was not conceded, Statistics Canada argued
that the requirement of a car was a bona fide occupational requirement within the meaning of
the Canadian Human Rights Act.
27
en 126 In Mr. Belyea's application for employment, he indicated that he could not engage in
heavy lifting and suffered from an allergy and epilepsy, both under control with
medication. He had been advised by his doctor not to lift heavy loads because of his
hernia. Mr. Belyea testified that medication had increasingly controlled the frequency of his
epileptic seizures. At the material time, he was forewarned of the onset of an attack and could
take his medication in a timely fashion, and had not had a seizure for over a year. However, his
doctor had advised against him driving until the gap between seizures was more substantial,
although he was in fact holding a valid jriying licence.
en 127 There was conflicting evidence on the events that followed his application for
employment which is unnecessary to summarize here.
en 128 The Tribunal concluded, in pan, as follows (at p. 9):
"Having reviewed the evidence in detail the tribunal finds that Mr. Belyea has failed
to make out a prima facie case of adverse impact discrimination in this
complaint. The Statistics Canada brochure which was introduced into evidence. ...
makes it clear ... that full time use of a car and a valid driver's licence was a
requirement in "some urban areas." We consider it entirely reasonable for Statistics
Canada to establish that requirement and to exercise its discretion based on experience
in detennining in what urban contexts a car is required. The requirement is clearly not
discriminatory on the face of it. Nor is it, in our opinion, discriminatory by virtue of
adverse impact. It is surely within the capacity of any employer to decide that a
particular job is one which requires an ability to drive and use a vehicle. Were it not
so a wide range of organizations, institutions and business would be seriously
incommoded in their operations. The necessary effect of such a requirement is that
some people will be excluded from consideration for ajob in which an ability to drive
is deemed to be essential or at least important. However, it is not only individuals who
are disabled from driving who will be adversely affected but anyone who for any
reason does not have a vehicle available and/or is not in a position to drive one. This
could well include those who cannot pass the test, or who for economic reasons do not
have access to a vehicle. Individuals with disabilities are not being singled out
consciously or unconsciously for special treatment in the case of an employment
condition of this type. It is thus different from the situation in Ontario Human Rights
Commission v. Etobicoke, [1982] 1 S.C.R. 202 in which the age requirement for
firemen only operated against those who had reached the maximum age, and that in
O'Malley v. Simpson Sears Ltd., [1985] 2 S.c.R. 536 in which the requirement of
working on Saturdays would effectively only impact negatively on those whose
religious beliefs caused them to treat that day as a day of rest. An employment
practice can only be classified as discriminatory which singles out an individual or
group of individuals for adverse treatment because they exhibit one or more of the
characteristics mentioned in s.3(l) of the Canadian Human Rights Act. That such an
individual or group is indirectly adversely affected by a reasonable job requirement
that excludes a broader range of people is not sufficient to warrant a finding that a
prima facie case of discrimination has been made out, unless, of course, an intention to
discriminate can otherwise be found."
28
The Board in Jeppesen did not agree with the reasoning or conclusion of the tribunal in
Belyea:
<JI 129 I express no opinion on whether Mr. Belyea's complaint was properly dismissed and,
in particular, whether the requirement of a car was a bona fide occupational requirement in that
case. However, with respect, I disagree with the reasoning that caused the Tribunal to conclude
that Mr ~~ly_ea had failed to make out even a prima facie case of--d.iscFimination. The Tribunal--
concluded that an employment practice can only be characterized as discriminatory where only
the disabled individual or the group of which he or she is a member is adversely affected by the
job requirement, unless an intention to discriminate is otherwise shown. In my view, this
reasoning is inconsistent with the body of jurisprudence pertaining to adverse effect
discrimination and with the recent decision of the Supreme Court of Canada in Meiorin.
supra. Indeed, the same reasoning might have resulted in the defeat of the complainant's claim
(which succeeded) in Meiorin. (Emphasis added.)
<JI 130 In Meiorin, a female complainant failed one of the fitness tests for forest
firefighters. The Court held that where employers seek to maintain safety by setting higher
than necessary standards, and where men and women do not have an equal ability to meet the
excessive standard, the effect may be to exclude qualified female candidates from employment
for no reason but their gender. This is so, whether or not the effect of the aerobic standards
might also be to exclude male applicants. In Meiorin, the aerobic standards had a
disproportionately negative effect on women as a group.
<JI 131 Belyea is not binding upon me. I am advised that it has not been cited or followed in
any other cases. For the reasons indicated, I decline to adopt its reasoning or its applicability to
this case.
At en 132 of Jeppesen, the Board oflnquiry noted that:
The requirement that all firefighters be legally qualified to drive an ambulance prima facie
constituted discrimination. It excluded persons with visual disabilities, including Mr. Jeppesen,
from becoming full-time firefighters. It affected Mr. Jeppesen, and persons similarly situated,
differently from others to whom it might have applied. It was prima facie discriminatory
because of the disproportionate effect of the requirement upon persons with Mr. Jeppesen's
disability: See also Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., supra at p.
549.
In the case before me I have found that s. 6 (1)(f) of O. Reg. 257/00 of the Ambulance
Act which requires that all paramedics in the land ambulance service "hold and maintain" the
drivers licence specified also constitutes prima facie discrimination.
In Jeppesen the respondent argued, at <JI 136, as did Mr. Strang before me:
Further, since the requirement was imposed by government, no accommodation was
available to the Service. Put another way, a requirement imposed by government cannot be
29
regarded as discrimination by the Respondents and must be regarded as a BFOR. In any event,
the creation of a new position would have resulted in undue hardship to the Service. It would
have compromised the ability of those assigned to ambulance duty to receive proper training in
fire suppression. As well, a firefighter assigned to the fire truck is often called upon to staff the
ambulance to permit both ambulance assignees to work on the patient. These are health and
safety issues.
The Board in Jeppesen (comm~cing at <<J[ 146), dealt w~h th<0espondents' argum~nL_
that there was no discrimination under the Code because the requirement was imposed by
government:
The Respondents submitted that a legal requirement imposed by a third party, the Government
of Ontario, cannot be regarded as discrimination by the Respondents and must therefore be
regarded as a BFOR. I briefly addressed this submission in the context of determining that the
Respondents had prima facie discriminated against Mr. Jeppesen. The government did not
impose a requirement that full-time firefighters must be legally qualified to operate an
ambulance. It imposed a requirement that ambulance operators [sic} must possess a valid class
F licence or its equivalent. It was the Respondents that imposed the requirement that all full-
time firefighters must possess a valid class F licence or its equivalent in order to operate the
ambulance. It was this requirement that resulted in Mr. Jeppesen's exclusion from employment
based on his disability and was therefore discriminatory, unless it constituted a BFOR.
Unlike Jeppesen, where the Board found that the requirement with respect to possessing
an F licence was employer imposed, in the case before me, the employer imposed the
requirement that paramedics employed by it "hold and maintain a driver's licence that
authorizes [them] to drive an ambulance" pursuant to s. 6(1)(f) of O. Reg. 257/00, because it
was mandated by a regulation imposed by government. For the purpose of my decision it does
not matter whether the Board in Jeppesen was correct in concluding that the requirement was
not government imposed. What is important is that in the case before me it was. What is also
important is whether this precludes me from finding that it was discriminatory. That is: Does it
have to stand up to scrutiny under the Code?
The Board in Jeppesen, in <<J[ 147, also noted that:
The Respondents also submitted that the fact that the government imposed the visual acuity
requirement for class F licence applicants is relevant in another way to whether the
Respondents failed in any duty to accommodate. It was argued that Mr. Jeppesen should have
sought accommodation from the Government of Ontario, rather than from the
Respondents. The Commission and Mr. Jeppesen submitted that, whether or not the
government discriminated against Mr. Jeppesen, the Respondents had an obligation not to
discriminate and that they were not relieved from their duty in this regard. They contended that
30
it was irrelevant whether the government discriminated against Mr. Jeppesen or could have
accommodated him.
It was because of the fact that these issues might arise in this case that notice was served
on the Attorney-General, which led to my order joining the Crown, with the right to appear and
participate in the hearing on the merits, which it did, as is noted above.
Significantly, in Jeppesen, the Board stated;
lJI 150 It is clear that the regulations to the Highway Traffic Act do not permit the
Government of Ontario to waive the visual acuity requirement imposed for applicants for class
F licences such as Mr. Jeppesen. No individual assessments are made or
permitted. Accordingly, there are certain parallels between the Grismer decision and Mr.
Jeppesen's situation. However, I am not in a position to conclude that the Ontario government's
legislative regime discriminates against persons such as Mr. Jeppesen.
lJI 151 Firstly, no request was made to add the Government of Ontario as a party to this
proceeding, nor was I prepared to do so on my initiative in the middle of the proceeding. Such
an approach would have been questionable, since no fonnal request was ever made of the
government to accommodate Mr. Jeppesen. To state the obvious, the government has had no
opportunity to demonstrate, if it can, that there are reasons why the waiver program cannot be
extended to class F licence applicants without undue hardship.
'll152 Secondly, Grismer may support the position that the Government of Ontario is
obligated to individually assess applicants for class F licences who seek accommodation due to
visual acuity disabilities. However, it may not be determinative. The regulations to the
Highway Traffic Act specifically state that the visual acuity qualifications required of an
applicant for a class F licence [See Note 20 below] apply despite the Code. Having noted that,
the effect of this provision would no doubt be the subject of legal debate and potentially the
subject of litigation under the Canadian Charter of Rights and Freedoms. [See Note 21 below]
Note 20: As well as applicants for other classes of licence or holders of such licences.
Note 21: One issue that arises is whether the provision that states that visual acuity
requirements apply despite the Code prevents an attack mounted not to the visual acuity
requirements themselves but to the separate provision that excludes applicants for some classes
of licences who fail to meet those visual acuity requirements from the waiver program. Section
47(2) of the Code confers primacy of the Code over other Acts or regulations, unless the latter
specifically provide that they apply, despite the Code.
In the case before me, the Crown having appeared and fully participated in the hearing,
the Board's reservations in Jeppesen do not apply. Furthermore, the submissions of the union
do not go beyond reliance on the primacy of the Code and no Charter arguments were pursued
by it.
31
Another recent case where an issue arose related to government involvement is British
Columbia (Ministry of Health Services) v. British Columbia (Emergency Health Services
Commission), [2007] B.C.J. No. 681 (S.c.), where Balance 1. stated:
Cjf 144 The Tribunal Member places particular emphasis on the remedial purposes of the
Code to justify her finding. She expresses the view that those purposes will be better s~'!:ye~EY
recognizing the government as Mr. Crane's co-employer. She finds that the Commission would
not likely be able to remedy any discrimination of Mr. Crane because (1) the government
provides 100% of its funding, and (2) there are a limited number of BCAS positions for
disabled paramedics. Characterizing accommodation as a remedy for discrimination under the
Code misses the mark. Accommodation is part of the BFOR defence provided for under section
13(4) of the Code. No prohibited discrimination is established if an employer can demonstrate
that its duty to accommodate the disabled employee to the point of undue hardship has been
discharged in a given case. The question of whether the Commission has discharged its duty to
Mr. Crane is still outstanding. By deciding that the government is a co-employer for the sole
purpose of expanding the pool of alternative positions that might be available for
accommodation purposes, the Tribunal has effectively granted Mr. Crane the "systemic
remedy" he seeks under section 37(2)(c) of the Code. But that remedy is premised on his
having been able to establish discrimination prohibited by the Code, which has not yet occurred,
and may never occur.
Cjf 145 Placed in a human rights context, the Decision is somewhat unique in that the
Tribunal's finding is not aimed at ensuring a discriminatory act will go unremedied or that the
person/entity who discriminated does not escape liability. It is not disputed that the pool of
available alternate positions for disabled ambulance paramedics is relatively limited; certainly
far more limited than the pool available for injured BCGEU government workers. The
conclusion on the employer issue was driven by the Tribunal's expressly stated concern that
accommodation opportunities for disabled ambulance paramedics are limited within the
Commission such that, the "pool of alternative positions needs to be larger and more varied
than the BCAS alone can provide" (para. 108). Relying on the case of Brown v. National
Capital Commission, 2006 CHRT 26, counsel for Mr. Crane asserts that it is possible to
involve the government in these proceedings as a third party because its involvement is
necessary 10 remedy the discrimination. That proposition may be valid in particular
circumstances. but I find that it is untenable in circumstances where, as here, the purported
basis for the involvement of such third party is as a co-employer and yet the factors of control,
utilization andfinancial burden and the surrounding statutory framework do not support a
finding that such third party is in an employment relationship with the complainant. (Emphasis
added.)
As noted, I concluded that the involvement of "the government" was appropriate in the
"particular circumstances" of this case in order that the question of discrimination could be
dealt with fully and a remedy granted, should a basis for doing so be established.
32
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Mr. Strang argued that as the visual acuity requirements imposed on an applicant for a
class F licence apply despite the Code, they cannot amount to discrimination. Mr. Blair
submitted that the fact that the visual "examination and qualifications required of an applicant
for or a holder of a [class F] driver's licence by ... section 17 (1)G) ... [so 19(1) or O. Reg.
340/94 of the Highway Traffic Act]"applies despite the provisions of the Code, does not
--.- ----
--. .----
interfereWitnMr. Rogers's right to accorrunodation in circumstances where he would be
functioning in an attend only capacity. That is, driving and the ability to drive are not the
subject of and have nothing to do with his claim that s. 6(1)(t) of the said regulation conflict
with his rights under s.5(1) of the Code, because it precludes his being accommodated in an
attend only capacity. Mr. Blair argued that Mr. Rogers's ability to qualify for an F licence is
not the issue. It is not the qualifications required of an applicant for an F licence or of the
provisions or lack thereof for waiver that impact on his right to accommodation, but the fact
that he has a handicap recognized under the Code, and that the regulation prevents him from
being accommodated as an attend only paramedic. As Mr. Rogers is not seeking
accommodation through an adaptation of the visual standards established for obtaining an F
licence, which apply "despite" the Code, I need not consider that subject.
Put another way, ss. 19 (1) and (2) of Reg. 340/94 of the Highway Traffic Act relate to
"examinations and qualifications" (s. 19(1) and to "qualify[ing]" (s. 19(2)), by its reference to s.
17(2), where the word "qualify" is found), for, inter alia, a Class F licence. Both subsections
provide that they apply despite the Code. On the other hand, there is no similar statement in s.
6 (1)(t) of O. Reg. 257/00 of the Ambulance Act, that it applies "despite" the Code. If it had
been intended to have s. 6 (1) (t) apply despite the provisions of the Code, this would have
been clearly stated. I find the omission to have been deliberate.
In British Columbia v. Bolster, [2007] B.C.J. No. 192 (C.A.), the court noted:
<JI 81 The gravamen of the Tribunal's decision was that the Superintendent discriminated
against Mr. Bolster by failing to offer him an individual functional driving assessment. That
was also the issue in British Columbia (Superintendent of Motor Vehicles) v. British Columbia
(Council of Human Rights), [1999] 3 S.C.R. 868 ["Grismer SCC"].
In Bolster, the Court of Appeal stated further:
33
<JI83 In Grismer SCC, McLachlin J. (as she then was) summarized the grounds on which this
Court found that the Tribunal Member had erred (at para. 11). The Province relies on the
following ground:
The Court of Appeal, per Donald J.A., unanimously allowed the appeal on the ground
that the Member had erred by: ... concludi ng that individual testing should be
considered absent evidence
that such assessment was a practical alternative, and considering whether
individual testing was possible, as opposed to practical. There was no evidence
of a "safe or reliable fonn of testing that can measure the ability to deal with
unexpected or exceptional traffic situations" (p. 321).
<JI84 An application for leave to appeal to the Supreme Court of Canada was filed on
February 26, 1998, and leave was granted October 8, 1998 ([1998] S.C.C.A. No. 69).
<JI85 On December 16, 1999, the Supreme Court of Canada allowed Mr. Grismer's appeal
(by then, his estate was the appellant, as Mr. Grismer died shortly after the Council's decision).
The Supreme Court held that the Superintendent had failed to accommodate Mr. Grismer by
offering him an individual assessment. As McLachlin J. said (at para. 44):
The discrimination here lies not in the refusal to give Mr. Grismer a driver's licence,
but in the refusal to even permit him to attempt to demonstrate that his situation could
be accommodated without jeopardizing the Superintendent's goal of reasonable road
safety.
In the case before me, the discrimination lies not in a refusal to give Mr. Rogers
an F licence or to afford him the opportunity to otherwise establish his competency to
receive one. Rather the discrimination lies in the absence of the possibility of
accommodation in s. 6 (l)(f), that would "permit him to attempt to demonstrate that his
situation could be accommodated [as an attend only paramedic] without jeopardizing"
the goal of reasonable safety to patients and others impacted by the operation of
ambulances. In Bolster, the court stated:
<JI141 It seems that McLachlin J. in Grismer see anticipated the argument made by the
Province in this case, when she said (at para. 45):
Nor should this decision be taken as predetermining the result in other cases. This
appeal is essentially ajudicial review of a decision of a human rights tribunal in a
n<lrt,t"I1I<1r t"<I"'" 'Th", r",,,"1t flnu,,, frnrn th", "'",H",n,.#> t"<lll",rI h",fnr", <Inri <It''t''#>nt#>H h" th",
34
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Member in this case. The Member found that the Superintendent had riot met the
burden of proving that a blanket refusal without the possibility of individual
accommodation was reasonably necessary under the Act. In another case, on other
evidence, that burden might be met.
In the case before me government representatives did not regard s. 6 (1)(f) as
--- .-
---- ----
--. ----
permitting any form of accommodation so as to allow Mr. Rogers to function in an
attend only capacity. Nor was there any willingness to consider "the possibility of
individual accommodation [being] reasonably necessary" under the regulation.
A person who wishes to be qualified as a paramedic who drives and attends, but
does not meet the visual acuity standards mandated to qualify for an F licence, will have
to overcome the provisions in the regulations (s. 19(1) and (2)) of the Highway Traffic
Act), which apply despite the Code. In the absence of a provision stating that s. 6 (1) (f)
of Reg. 257/00 of the Ambulance Ac applies despite the Code, a person, such as Mr.
Rogers, who wishes to be qualified as an attend only paramedic and seeks
accommodation to permit this to happen, may show that the section discriminates
against himlher, thereby requiring an examination of the jurisprudence relating to the
need to accommodate. This is what Mr. Blair attempted to do relying on
Tranchemontagne, which is discussed above and below.
It is important to note that the union only sought an order reflecting the primacy of the
Code where there is a conflict between the provisions of Part I and the provisions of an act or
regulation. In this case s. 6 (1) (f) of Regulation 257/00 under the Ambulance Act and the duty
to accommodate under s.11 (2) and s. 17 (2) of the Code. S. 47 (2) gives precedence to the
provisions of the Code in case of such conflict. As the Supreme Court stated in
Tranchemontagne, supra at paragraph 51 :
. . . tribunals should be loath to avoid cases on the assumption that the legislature gave
them insufficient tools to handle matters within their jurisdiction.
In Tanchemontagne reference was made, at para 16, to Nova Scotia (Workers'
Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 sec 54, ("Martin"):
35
Although the issue before the arbitrator arose by virtue of a grievance under a collective
agreement, it became necessary for him to go outside the collective agreement and to construe
and apply a statute which was not a projection of the collective bargaining relations of the
parties but a general public enactment of the superior provincial Legislature: McLeod v. Egan,
[1975] 1 S.C.R. 517, at p. 518. [Lasldn C.l., concurring; emphasis added in Tranchemontagne.
Tranchemontagne was also mentioned with approval in the recent case of Council of
Canadians with Disabilities v. ViaRaiTtanada Inc., [2007Ts.c.J. No. 15 at para. 114. In para.
115 of the latter case, reference is made to Winnipeg School Division No.1 v. Craton, [1985J 2
S.C.R. 150, at p. 155, where Dickson C.J.:
. .. confinned that where there is a conflict between human rights law and other specific
legislation, unless an exception is created, the human rights legislation, as a collective
statement of public policy, must govern. It follows as a natural corollary that where a
statutory provision is open to more than one interpretation, it must be interpreted
consistently with human rights principles.
As above noted: I conclude that s. 6 (1) (0 of O. Reg. 257/00 of the Ambulance Act
discriminates against Mr. Rogers because of his visual handicap, as it has the effect of
precluding consideration of a range of accommodations. My conclusion does not mean
that Mr. Rogers will automatically be entitled to the accommodation he seeks. It only
means that he will be entitled to be treated in the same way as other persons claiming
redress under the Code by way of accommodation. In the result, s. 6 (1) (0 is still valid
and is only inoperable for the purposes of this case. The issue before me is whether the
Employer is required to accommodate Mr. Rogers in his position as a paramedic, by
allowing him to attend only. It was agreed that all of the other paramedics employed by
the Employer were agreeable to working under this accommodation, so that when
working with Mr. Rogers they would drive while he attends.
The Significance of Mr. Rogers not Being a New Hire
In Baldasaro v. Ontario (Human Rights Commission), [2006] 0.1. No. 2489 (Div. Ct.),
the Court observed:
<J[ 24 During the hearing of this application, the applicant raised the issue of accommodation
by allowing him to stay with the fire truck or to work in the community. However, the
Commission accepted the City's submission that accommodation requirements are different for
36
new hires and for existing employees, and the focus in this case is the applicant's ability to do
the job for which he applied - suppression firefighting.
The requirements with respect to Mr. Rogers are those that apply to an existing employee.
In Quackenbush v. Purves Ritchie Equipment Ltd. (c.o.b. Purves Ritchie), [2006] B.C.J.
No. 310-(BCSE), the Court stated:----
lJ[ 55 ... Where the circumstances involve an existing employment relationship, the duty
to accommodate operates independently of the Meiorin test, as the authorities provided
by the parties amply demonstrate.
Applying the Meiorin Test:
In analyzing the arguments presented, below, I am mindful of numerous
pronouncements in the human rights jurisprudence noting the central importance of
employment to the lives of members of society. Dickson C.J.C. observed in Reference Re
Public Service Employee Relations Act (Alberta.), [1987] 1 S.C.R. 313 at para. 91, that "[a]
person's employment is an essential component of his or her sense of identity, self-worth and
emotional well-being." The Code's remedial provisions dealing with employment
discrimination have been afforded a broad and purposive interpretation so as to best ensure
attaining its objects and the protection of employees from discrimination.
This approach is also referred to in Canada (Canadian Human Rights Commission) v.
Canadian Airlines International Ltd., [2004] F.C.J. No. 483 CEC.A.), per. Rothstein lA. as he
then was:
<J[ 18 The Commission argued, and I agree, that human rights legislation should be construed
broadly and purposively and that the Guidelines should not be used to hinder or undennine the
purpose which is sought to be achieved by section 11 of the Act. However, a broad and
purposive approach to interpretation does not give a tribunal or a court licence to ignore words
of a statute or, in this case, binding guidelines, in order to prohibit discrimination at large.
<J[ 19 In Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, Iacobucci J., forthe
majority, wrote at page 585:
37
On the subject of the appropriate interpretive approach for human rights statutes, the
need to approach the legislation purposively, giving it a fair, large and liberal
interpretation with a view to advancing its objects, is well accepted. But it is also well
established that the wording of the statute is an important part of the process.
Iacobucci J. then referred at page 586 to the explanation given by Lamer C,J. in University of
B1i1isb~0Iumbia v. Berg, [19931~S.C.R. 353 at 371:
However, on the other hand, as the Chief Justice explained, at p. 371,
[t]his interpretive approach [i.e., a broad, liberal and purposive approach] does
not give a board or a court license to ignore the words of the Act in order to
prevent discrimination wherever it is found. While this may be a laudable goal,
the legislature has stated, through the limiting words in s. 3 [i.e., the phrase
"customarily available to the public"], that some relationships will not be
subject to scrutiny under human rights legislation. It is the duty of boards and
courts to give s. 3 a liberal and purposive construction, without reading the
limiting words out of the Act or otherwise circumventing the intention of the
legislature.
A true purposive approach looks at the wording of the statute itself, with a view to
discerning and advancing the legislature's intent. Our task is to breathe life, and
generously so, into the particular statutory provisions that are before us.
A purposive approach to interpreting legislation does not allow the Court to give effect to a
policy the Court thinks is appropriate without paying due attention to the words adopted by
Parliament.
And from the concuning reasons of Nadon J.A.:
en 60 This kind of interpretive dilemma should be resolved, if the statutory language so
permits, by the broad and purposive interpretation of human rights legislation. Relying on
Bhinder v. Canadian National Railway Company, [1985] 2 S.c.R. 561 at 567, Ruth Sullivan
has aptly said in Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto:
Butterworths, 2000) at 376:
Interpretive doubts should be resolved in such a way that the overall purpose of the
legislation - the promotion and protection of rights - is fostered. Thus, exceptions and
defences in human rights legislation are strictly construed.
See also Dickason v. University of Alberta, [1992] 2 S.C.R. 1103 at 1121 (per Cory 1.).
38
The decision of the Court of Appeal was affirmed by the Supreme Court of Canada:
(2006] S.C.J. No.1. The judgment of the Court was delivered by LeBel and Abella JJ., where
the following appears:
(2) The Interpretation of Human Rights Laws
'lI 15 Narrow interpretations may sterilize human rights laws and defeat their very purpose.
Our Court cautioned against this risk in Bell Canada in the course of reviewing aspects of the
function of a Human Rights Tribunal, per McLachlin C.J. and Bastarache J.:
In answering this question, we must attend not only to the adjudicative
function of the Tribunal, but also to the larger context within which the
Tribunal operates. The Tribunal is part of a legislative scheme for identifying
and remedying discrimination. As such, the larger purpose behind its
adjudication is to ensure that governmental policy on discrimination is
implemented. It is crucial, for this larger purpose, that any ambiguities in the
Act be interpreted by the Tribunal in a manner that furthers, rather than
frustrates, the Act's objectives. (para. 26]
<Jl16 In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission),
(1987] 1 S.C.R. 1114, at p. 1134, Dickson C.J., acknowledging the unique purpose of human
rights legislation, held that "the words of the Act must be given their plain meaning, but [that] it
is equally important that the rights enunciated be given their full recognition and effect" and
held that remedial statutes like the Act are to be given "such fair, large and liberal interpretation
as wi II best ensure that their objects are attained".
<Jl41 ... [C]ollective bargaining does not operate in a vacuum and labour agreements are not
interpreted and applied in a void. They are constrained by a legal environment which, among
other things, prohibits discriminatory practices (F. Morin and J.- Y. Briere, Le droit de l'emploi
au Quebec (2nd ed. 2003), at pp. 973-77). .., Human rights principles often become part of
collective agreements, explicitly or implicitly (Parry Sound (District) Social Services
Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.e.R. 157,2003 sce 42).
It is with this background that I approach the application of the three step Meiorin test,
set out in para. 54 of that case:
Step 1
"[T]hat the employer adopted the standard for a purpose rationally connected to
the performance of the job[.]"
The approach to applying the steps was described in Grismer:
39
lJI 21 This test permits the employer or service provider to choose its purpose or goal, as long
as that choice is made in good faith, or "legitimately". Having chosen and defined the purpose
or goal -- be it safety, efficiency, or any other valid object -- the focus shifts to the means by
which the employer or service provider seeks to achieve the purpose or goal. The means must
be tailored to the ends. For example, if an employer's goal is workplace safety, then the
employer is entitled to insist on hiring standards reasonably required to provide [page882] that
workplace safety. However, the employer is not entitled to set standards that are either higher
than necessary for workplace safety or irrelevant to the work required, and which arbitrarily
-- exClude some classes of-worKers. On the other hafia~inne policy or practiceisreasonably
necessary to an appropriate purpose or goal, and accommodation short of undue hardship has
been incorporated into the standard, the fact that the standard excludes some classes of people
does not amount to discrimination. Such a policy or practice has, in the words of s. 8 of the
Human Rights Code, a "bona fide and reasonable justification". Exclusion is only justifiable
where the employer or service provider has made every possible accommodation short of undue
hardship.
lJI 25 The Superintendent's goal in this case was to maintain highway safety. But what kind
of safety? What degree of risk would be tolerated? Where did the Superintendent draw the line
between the need to maintain highway safety and the desirability of permitting a broad range of
people to drive? The possibilities range from absolute safety, in which case few if any mortals
would be allowed to drive, to a total lack of concern for safety, in which case everyone,
regardless of their lack of ability, would be allowed to drive. Between these two extremes lies
the more moderate view that reasonable safety suffices. The question is: where on this
spectrum did the Superintendent set the bar?
<<jf 28 Having determined the nature of the Superintendent's objective, the next question is
whether the Superintendent established on a balance of probabilities that the goal of reasonable
road safety was rationally connected to the Superintendent's public function. In Meiorin, the
question was whether the purpose (safety and efficiency) was rationally connected to the
performance of the job (fire fighting). In this case, the question is whether the Superintendent's
goal (ensuring a reasonable level of highway safety) was rationally connected to his general
function (issuing driver's licences). There can be no question that a rational connection has
been shown. Highway safety is indubitably connected to the licensing of drivers. Common
sense and experience tell us that driver's licences should only be issued to those who can
demonstrate a reasonable degree of ability and safety in driving [emphasis added].
I find that the standard established in s. 6 (1 )(f) of O. Reg. 257/00 of the Ambulance Act
was "adopted" "for a purpose rationally connected to the performance of the job" of a
paramedic, as the safety of patients and the public affected by the operation of land ambulances
can, in turn, be affected by the way in which ambulances are staffed.
40
Step 2
"[T]hat the employer adopted the particular standard in an honest and good faith
belief that it was necessary to the fulfilment of that legitimate work-related
purpose[. ]"
The approach to applying Step 2 is described in Grismer:
<J[ 29 The second question is whether the Superintetlclentadopted the standard-nr good
faith. Here again, there can be no doubt that the Superintendent satisfied the requirement. No
one suggests that the Superintendent had any motive for the standard he chose other than to
maintain highway safety.
Here there is no suggestion that the standard within s. 6 (1)(f) of O. Reg. 257/00 was
adopted for other than good faith reasons: to maintain safety and health standards in the
operation of the land ambulance service.
Step 3 "[T]hat the standard is reasonably necessary to the accomplishment of that legitimate
work-related purpose. To show that the standard is reasonably necessary, it must be
demonstrated that it is impossible to accommodate individual employees sharing the
characteristics of the claimant without imposing undue hardship upon the employer."
As previously noted, the Meiorin test has been applied in a variety of contexts and does
not require that the allegedly discriminatory standard be created by a person's employer for it
to be evaluated in relation to its compliance with the Code: See Hogan, above.
In applying the Meiorin test to the standards established in s. 6 (1 )(f) of O. Reg. 257/00
of the Ambulance Act, it is important to recognize the extent to which it applies across
categories, the significant point being noted in Ontario (Human Rights Commission) v. Shelter
Corp., [2001] OJ. No. 297 (Div. Ct.) per O'Driscoll J. :
17 On September 9, 1999, some ten (10) months after the Board of Inquiry's decision, the
Supreme Court of Canada released its reasons in British Columbia (Public Service Employee
Relations Commission v. BCGSEU, [1999] 3 S.C.R. 3 (Meiorin). In her reasons, McLachlin J.,
(for the full Court), abolished the distinction between "direct" and "indirect"
discrimination. On December 16, 1999, the Supreme Court of Canada released its decision in
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human
Rights), [1999] 3 S.C.R. 868 (Grismer). McLachlin J. (for an unanimous court), wrote [at p.
880]:
^ADinr-i", annnlln("Pr1 ~ Ilnifipn ~nnr("\~,.h tn g,r1111r1if"'at;nn n'~t""r1m;nat;nn f'h~;1Y\C I1nnpr hl1rY\~n nnhtc
41
legislation. '" Employers and others governed by human rights legislation are now required in all
cases to accommodate the characteristics of affected groups within their standards, rather than
maintaining discriminatory standards supplemented by accommodation for those who cannot meet
them. Incorporating accommodation into the standard itself ensures that each person is assessed
according to her or his own personal abilities, instead of being judged against presumed group
characteristics. Such characteristics are frequently based on bias and historical prejudice and cannot
form the basis of reasonably necessary standards. While the Meiorin test was developed in the
-- employment context, it ap]5lieSto all claims for distnmiiiiifion under the B. C. Hiiml1n~ights Code.
[Emphasis added.]
See also: Entrop v. Imperial Oil Limited (2000),50 O.R. (3d) 18 (O.C.A.):
<J[ 76 The significance of eliminating the distinction between direct and adverse effe
discrimination and of the three-step justification for a prima facie discriminatory workplace
rule is that now the rule itself must accommodate individual differences to the point of undue
hardship. If it does, the rule is a BFOR. ...
<J[ 77 The Supreme Court's three-step test was fonnulated in the context of a discrimination
complaint under the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210. The
wording of the statutory defences available to an employer under Ontario's Code differs from
the wording under the British Columbia Code. Section 11 of Ontario's Code sets out in detail
the elements of a BFOR; the comparable provision of the British Columbia Code, s. 13(4),
provides simply that "subsections (1) and (2) do not apply with respect to a refusal, limitation,
specification or preference based on a bona fide occupational requirement." ... In the case of
handicap discrimination, s. 17 of the Ontario Code has no counterpart in the British Columbia
Code. The difference in wording in the two statutes raises the question whether the Supreme
Court's three-step test for justifying a prima facie discriminatory workplace rule should be
applied in this case. In my view, the unified approach and the three-step test adopted in
Meiorin should be applied. Applying the unified approach means that Imperial Oil can rely on s.
11 of the Code as well as s. 17. Under either section, however, to justify its workplace rules it
must satisfy the three-step test in Meiorin.
In Grismer, McLachlin lA. stated, in analyzing the requirements of Step 3:
<J[ 30 The third question is whether the standard chosen by the Superintendent was
reasonably necessary to accomplish the legitimate purpose. To meet [page886] this
requirement, the Superintendent had to show that he could not meet his goal of maintaining
highway safety while accommodating persons like Mr. Grismer, without incurring undue
hardship. Risk has a limited role in this analysis. It is clear from Meiorin that the old notion
that "sufficient risk" could justify a discriminatory standard is no longer applicable. Risk can
still be considered under the guise of hardship, but not as an independent justification of
discrimination. In this case, risk is used as a measure of the level of safety which was sought
by the Superintendent, and as a factor in assessing the lack of accommodation provided by the
Superintendent for people with H.H. The critical issue is whether the Superintendent's non-
accommodating standard was reasonably necessary to the achievement of reasonable highway
safety. (Emphasis added.)
42
Of significance in the case before me is the further statement of McLachlin J. in
Grismer:
lJI 31 Before discussing the ways in which the Superintendent sought to justify the blanket
rejection of licensing people with H.H. in this case, two common indicia of unreasonableness
mentioned in these proceedings may be noted. First, a standard that excludes members of a
-~particular group on impressionistic assumptions is gerreralty suspect. That is nonhe<::llSe here:
the Member found that the Superintendent's prohibition was based on current knowledge and
was not impressionistic. ...
In the case before me, although the evidence adduced by Mr. Strang and Mr. Wolfenden
as to the reasons why health and safety considerations required paramedics who could both
attend and drive ambulances was not impressionistic and was based on experience in managing
a variety of actual situations where ambulance paramedics function, it was unimpressed by the
evidence concerning the actual experience of ambulances being operated with attend only
volunteer paramedics. McLachlin 1. dealt with a comparable situation in Grismer:
en 34 The first possibility is that people with Mr. Grismer's condition could not be
accommodated because it would be totally incompatible with the Superintendent's standard of
highway safety. In other words, no person with his condition could ever drive on highways
without creating an unacceptable level of risk to the public. The Court of Appeal reasoned that
it is common sense, or "intuitive", that there is a connection between an absence of peripheral
vision and a risk of accidents. Intuition tells us, it is true, that lack of peripheral vision may
reduce the ability of people to anticipate emergencies and react as quickly as they could
otherwise. However, this does not support the conclusion that people with this condition can
never meet the standard of reasonable highway safety, for two reasons.
lJl35 First, it assumes a standard of perfection, which is not the general standard that the
Motor Vehicle Branch applies to people seeking driver's licences, as discussed above. Many
people of varying driving abilities are licensed every day. Second, the suggestion that
accommodating people with H.H. could never be possible without undue safety risk is belied by
the fact that some drivers with less than full peripheral vision appear to drive safely and are
allowed to drive by other state licensing agencies [emphasis added]. ...
lJl36 The evidence on the effects of the condition contradicted the Superintendent's claim
that no person with H.H. could ever meet the standard of reasonable safety he expects of
ot~ers. For example, the Swedish Study indicated that while most people with visual defects
such as H.H. have slower reaction times than those with normal fields of vision, some people
are able to compensate for their disability. Other evidence showed that individuals with Mr.
Grismer's condition can compensate to some extent for their lack of peripheral vision by using
prism lenses and by turning their head from side to side to survey the road. Not everyone with
H.H. will succeed in reducing the risk associated with this condition through these
43
means. However, that does not defeat the argument that some may be able to do so, and those
exceptional individuals should be accommodated if it is possible short of undue hardship.
In the case before me I will have to consider evidence that for approximately 18 years
there have been a number of volunteer paramedics who, as a result of the statutory waiver
found in s. 6 (3) to O. Reg. 257/00 of the Ambulance Act, have served in an attend only
__n_. _..__
capacity without apparent risk to a standard of reasonable safety. There was no evidence by
way of examples where the Ministry's (or the employer's) health and safety concerns had been
supported by actual evidence of negative health and safety consequences resulting from the use
of attend only volunteer paramedics. In Grismer, McLachlin noted:
en 37 In short, the evidence suggested that some people with H.H. may be able to drive safely
and that Mr. Grismer may have been among them.
In the case before me the critical issue is whether the non-accommodating standard
imposed by s. 6 (1)(f) of O. Reg. 257/00 of the Ambulance Act, which had the effect of
mandating that all ambulance paramedics be able to drive and attend, was reasonably necessary
to achieve the goal of reasonable safety to patients and others affected by the operation of land
ambulances.
In order to demonstrate that the standard created by s. 6 (1)(f) of O. Reg. 257/00 of the
Ambulance Act, the effect of which is to mandate that a paramedic drive an ambulance as well
as attend, "is reasonably necessary," Mr. Strang adduced evidence from Anthony Campeau,
who has been Provincial Manager, Land Ambulance Program, Emergency Health Services
Branch of the Ontario Ministry of Health, since June of 2004. Mr. Campeau's evidence was
also submitted for the purpose of "demonstrate[ing] that it is impossible to accommodate
individual employees sharing the characteristics of [Mr. Rogers] without imposing undue
hardship upon the employer" and the Ministry of Health. Mr. Campeau's professional
qualifications and experience are impressive. He worked as a land ambulance paramedic
(1978-1985) and progressed through various levels of authority with the Ministry of Health
relating to the Emergency Health Services Branch, rising to his present position. He was, as at
the last day of hearing, a candidate to receive a Doctor of Education degree at the Ontario
Institute for Studies in Education of the University of Toronto, and was soon to defend his
44
thesis. He has a significant record of academic publications, some of which touched on the job
of a paramedic.
The essential features of his evidence relating to the third of the Meiorin steps was that
accommodating Mr. Rogers, by permitting him to be employed as a paramedic in an attend
only-capadty, would impOstHlnduehardship because TfwouTd give rise to an unacceptable
level of risk to the health and safety of people being transported by ambulance and to others.
Mr. Campeau testified in a forthright manner and in considerable detail about the ways in
which different kinds of emergencies arise in the operation of the Land Ambulance Program
and how they are responded to by managers responsible for the coordination of paramedics'
activities. In particular he described how the Branch responded to multiple vehicle accidents,
where conditions are frequently chaotic. He described the role of coordinators in making on the
spot decisions concerning where patients should be directed for treatment, when a member of a
crew from one ambulance would be directed to serve in another one, when patients would be
transferred between ambulances, how information about a patient was conveyed to persons not
initially involved in treatment, and in what circumstances a patient might be transferred to a
crew where at least one of them was unfamiliar with the case. In the last mentioned situation,
according to Mr. Campeau, inadvertent distress could be experienced by a patient, relatives
and bystanders (reference being made to how this situation could be exacerbated when it was
caused by a transfer occasioned as a result of the presence of an attend only paramedic).
Earlier Mr. Wolfenden had called Rob Duquette, the Manager, Quality Programs and
Proficiency Development in the Paramedic Service, who has held that position since 2004 (first
on an acting basis). Mr. Duquette, was initially employed as a paramedic 1984, first as a
volunteer. He said that "at some point" he moved to a position as "manager" or "supervisor, he
believed in September of 1989, first as a field supervisor, with some paramedic duties. He
testified that became an "active supervisor" "around July of 2001" without attendant duties.
His evidence agreed with that of Mr. Campeau in relation to the description of the
environments where paramedics worked and the way in which various scenarios were managed.
45
Mr. Campeau also testified about studies he was familiar with which concluded that
certain strict time lines should be the standard adhered to when transporting heart and stroke
patients to hospitals to receive specialized, potentially life saving care. He mentioned a "one
hour rule" which applied in such cases and emphasized that it ought to be followed to give a
patient the greatest opportunity to receive early medical intervention and thereby have a greater
._~-- ---
----- --~
.-- "----
-._--- "---
chance of survival and of optimum recovery. The urgent need for a speedy response in other
emergencies was also dealt with by Mr. Duquette. In Mr. Campeau's and Mr. Duquette's
opinion, there could be delays experienced in transporting patients should an ambulance be
permitted to operate with an attend only paramedic, as well as problems in communicating a
patient's condition where a transfer was necessitated because an attendant couldn't drive.
Mr. Blair did not dispute Mr. Campeau's or Mr. Duquette's evidence about the need for
a prompt response in transporting patients and the way patients are transferred and dispatched
from accident scenes. His position was that the health and safety of patients and others would
in no significant way be placed at risk should Mr. Rogers by accommodated by allowing him
to serve as an attend only paramedic.
In Grismer, McLachlin I.A. stated:
en 38 Having failed to prove on a balance of probabilities that no one with Mr. Grismer's
condition could ever drive with a reasonable level of safety, in order to succeed the
Superintendent was required to show that the second type of accommodation -- .
individual assessment -- was also not feasible because it would have been impossible short of
undue hardship. The Superintendent made two arguments in relation to hardship. First, he
argued that individual assessment was not possible because there were no known tests by which
to establish whether someone like Mr. Grismer could drive in a reasonably safe manner. Until
such tests were developed, he argued, the Motor Vehicle Branch was permitted to categorically
exclude everyone with this disability. Second, the Superintendent argued that even if there had
been a test, it would have been so expensive and dangerous that its use would have constituted
"undue hardship".
Both Mr. Strang and Mr. Wolfenden submitted that if I concluded that the basis for a
blanket denial of accommodation had not been established, and they had to establish that Mr.
Rogers could not be accommodated by pennitting him to serve as a paramedic in an attend
only capacity, then they had done so, because allowing the request would have the effect of
46
"imposing undue hardship" on both Ministry of Health and the employer, "considering" the
"health and safety requirements" referred to in s. 11(2) and s. 17 (2) of the Code.
Union counsel submitted that Mr. Campeau's and Mr. Duquette's similar conclusions,
although arrived at honestly and in good faith, were hypothetical and were not borne out by
actual experience. This was said to-follow from the fact-that-a number of volunteer }5aramedics
have functioned in an attend only capacity in the Land Ambulance Program for many years.
The current waiver, found in s. 6 (3) of the said regulations, has existed since 1989: see O. Reg.
600/89, s. 5 (6). It was submitted that no evidence had been presented that this had led to actual
incidents where patients and others had experienced negative health and safety effects.
Although Exhibit 23, setting out the names of current volunteer paramedics, the location where
they serve and the nature of the drivers' licences they possess, lists only one volunteer who did
not possess an F licence, such an extended period of experience without any evidence of the
potential adverse health and safety consequences adverted to by Messrs. Campeau and
Duquette being realized, was said to support the union's position that the accommodation
sought did not impose an unacceptable level of risk to patients or others. Mr. Blair said that the
real facts on the ground ought to be relied on rather than a hypothetical description of the
probable risks of permitting Mr. Rogers to serve as a paramedic in an attend only capacity.
In responding to Mr. Campeau's evidence that the exception applicable to volunteer
paramedics serving in an attend only capacity was a result of the fact that a number of, mostly
northern, areas of the province would be unable to provide full ambulance service without it,
Mr. Blair noted, referring to Exhibit 23, that a number of services in more highly developed
areas also used volunteer paramedics who were subject to the same waiver provision. He also
observed that emergencies, such as multiple accident scenes, are by no means restricted to
more populated areas of the province. I was asked to conclude that, although limited in
numbers, volunteer paramedics have served, and continue to be permitted do so in other than
remote areas in an attend only capacity, and that this had not led to the realization of the health
and safety concerns raised by Messrs. Campeau and Duquette. Although evidence of the
number of attend only volunteer paramedics who served as such in the past was unavailable,
47
Mr. Campeau did not disagree with the suggestion that there had been some for the period that
the exception has existed, although the numbers have continued to diminish.
McLachlin J. continued in Grismer:
lJ[ 42 In summary, the_ Sup~rintendent offered no~~dtmce that he had consid~~da-D.Y of the
--- options that might have made an assessment of Mr. Grismer's driving abilities viable and
affordable. Content to rely on the general opinion of the medical community, and ignoring the
evidence that some people with H.H. can and do drive safely, he offered not so much as a
gesture in the direction of accommodation. His position, quite simply, was that no
accommodation was necessary. Under the Meiorin test, it was incumbent on the
Superintendent to show that he had considered and reasonably rejected all viable forms of
accommodation. The onus was on the Superintendent, having adopted a prima facie
discriminatory standard, to prove that incorporating aspects of individual accommodation
within the standard was impossible short of undue hardship. The Superintendent did not do so.
On the facts of this case, the Superintendent's blanket refusal to issue a driver's licence was not
justified. He fell into error in this case not because he refused to lower his safety standards
(which would be contrary to the public interest), but because he abandoned his reasonable
approach to licensing and adopted an absolute standard which was not supported by convincing
evidence. The Superintendent was obliged to give Mr. Grismer the opportunity to prove
whether or [page893] not he could drive safely, by assessing Mr. Grismer individually. It
follows that the charge of discrimination under the Human Rights Act was established.
lJ[ 43 This is the conclusion that the Meiorin test requires, on the evidence and findings in
this case. The question may be put, however, whether this approach places too high an
evidentiary burden on the government, particularly in situations involving public safety. The
obvious answer to this question is that it is the Legislature, not the Court, which has placed the
evidentiary burden of showing reasonable necessity once prima facie discrimination has been
made out. More fundamentally, is it really inappropriate to require a governmental body that
rejects an application for a driver's licence on the basis of disability to prove on a balance of
probabilities that the denial is reasonably necessary to the standard of highway safety it has
selected? The government authority knows why it makes the denial and is in the best position
to defend it. The government must only establish its justification according to the relaxed
standard of proof on a balance of probabilities. Common sense and intuitive reasoning are not
excluded, but in a case where accommodation is flatly refused there must be some evidence to
link the outright refusal of even the possibility of accommodation with an undue safety risk. If
the government agency can show that accommodation is impossible without risking safety or
that it imposes some other form of undue hardship, then it can maintain the absolute
prohibition. If not, it is under an obligation to accommodate the claimant by allowing the
person an opportunity to show that he or she does not present an undue threat to safety.
(Emphasis added.)
In the case before me, the actual experience based on approximately 18 years of practice,
during which time a small number of volunteer paramedics have served in an attend only
capacity without evidence of any negative health and safety consequences, does not appear to
48
have been considered significant by the Ministry of Health. What dominated the thinking of
management, as was clear from Mr. Campeau's evidence, was the fact that such a situation was
inconsistent with the goal of having all paramedics qualified to drive ambulances. Although a
worthy objective, it does not appear that the situation was considered in the light of the
requirements of the Code. As noted, Mr. Campeau's evidence clearly demonstrated that health
---- - ---
------
and safety concerns were hypothetica1. However, because his concerns were based on a
hypothesis derived from his expert consideration of how accident and related scenes arise and
are responded to and managed, doesn't automatically mean that the logic of his analysis will
result in negative health and safety consequences, should Mr. Rogers be permitted to serve in
an attend only capacity. I place no pejorative connotation to Mr. Campeau's or Mr.Duquette's
description and analyses being characterized as hypotheses or being hypothetica1. In Webster's
New World Dictionary, Third College Edition, the definition of the word "hypothetical"
includes "assumed, supposed" and "conditiona1." Hypothesis is defined (ibid.), in part, as
"supposition, etc. tentatively accepted to explain certain facts." One vital element had
apparently not been given much thought as a means of testing the validity of the hypothesis:
the actual experience gained from using attend only volunteer paramedics over an extended
period of time.
When Mr. Campeau referred to the exemptions with respect to volunteer paramedics
who may not drive or have the equivalent attending qualifications as full time paramedics, he
indicated that without them certain areas of the province would have to do without some
ambulance service. Implicit in his evidence was the fact that the Ministry felt that it was better
to have lesser qualified attendants than to create a situation where some calls for ambulance
assistance could not be responded to. It was suggested that this state of affairs justified the
exemption and differentiated the case of volunteers from that of full time paramedics. That is:
there was a justification for a lesser degree of safety in the case of volunteers, as it was better
to live with this situation than with one where some calls might not be capable of being
responded to. Such justification was said not to apply to full time paramedics. Although this
submission is deserving of some weight, I am still required to evaluate the evidence of actual
49
experience under the exemption to see if the accommodation sought by Mr. Rogers would
constitute undue hardship because it would impose an unreasonable health and safety risk.
A recent case on the subject of undue hardship is Multani v. Commission scolaire
Marguerite-Bourgeoys, [2006] 1 S.c.R. 256. In that case (at para. 9), a school board's council
-of commissioners resolution ora dispute with respect toa Sikh student wasfoperffiit him to
follow Sikh religious dictates by wearing a "symbolic kirpan or one made of a material
rendering it harmless." The majority of the Court, per Charron I.stated, at para. 45:
Clearly, the objective of ensuring safety in schools is sufficiently important to warrant
overriding a constitutionally protected right or freedom. It remains 10 be determined what level
of safety the governing board was seeking to achieve by prohibiting the carrying of weapons
and dangerous objects, and what degree of risk would accordingly be tolerated [emphasis
added].
The italicized portion is germane to the issue before me relating to the extent of the duty
to accommodate. Charron J. 's reasons shows that the latter issue would not be decided
differently in this case employing such reasons. In addressing the latter issue, Charron J. went
on to say:
<<H45 As in British Columbia (Superintendent of Motor Vehicles) v. British Columbia
(Council of Human Rights), [1999] 3 S.C.R. 868 at para. 25 ("Grismer"), the
possibilities range from a desire to ensure absolute safety to a total lack of concern for
safety. Between these two extremes lies a concern to ensure a reasonable level of safety
(emphasis added).
l)[ 46 Although the parties did not present argument on the level of safety sought by the
governing board, the issue was addressed by the intervener Canadian Human Rights
Commission, which correctly stated that the standard that seems to be applied in schools is
reasonable safety, not absolute safety. The application of a standard of absolute safety could
result in the installation of metal detectors in schools, the prohibition of all potentially
dangerous objects (such as scissors, compasses, baseball bats and table knives in the cafeteria)
and pennanent expulsion from the public school system of any student exhibiting violent
behaviour. Apart from the fact that such a standard would be impossible to attain, it would
compromise the objective of providing universal access to the public school system.
l)[ 47 On the other hand, when the governing board approved the article in question of the
Code de vie, it was not seeking to establish a minimum standard of safety. As can be seen from
the affidavits of certain stakeholders from the educational community, violence and weapons
are not tolerated in schools, and students exhibiting violent or dangerous behaviour are
50
punished. Such measures show that the objective is to attain a certain level of safety beyond a
minimum threshold.
'Il48 I therefore conclude that the level of safety chosen by the governing council and
confirmed by the council of commissioners was reasonable safety. The objective of ensuring a
reasonable level of safety in schools is without question a pressing and substantial one.
'Il51 The approach to the question must be the same where what is in issue is not legislation,
but a decision rendered pursuant to a statutory discretion. Thus, it must be determined whether
the decision to establish an absolute prohibition against wearing a kirpan "falls within a range
of reasonable alternatives".
In the case before me, I have to decide "whether the decision to establish [the] absolute
prohibition" [in s. 6(1)(f) of O. Reg. 257/00] against employing a paramedic who does not
"hold and maintain" "the driver's licence that authorizes the person to drive an ambulance,"
thus having the effect of precluding any accommodation of the employee in the paramedic
position, "falls within a range of reasonable alternatives." Charron J. went on to say:
'Il52 In considering this aspect of the proportionality analysis, Lemelin 1. [in the Court of
Appeal] expressed the view that [TRANSLATION] n[t]he duty to accommodate this student is
a corollary of the minimal impairment [test]" (at para. 92). In other words, she could not
conceive of the possibility of a justification being sufficient for the purposes of s. 1 if
reasonable accommodation is possible (at para. 75). This correspondence of the concept of
reasonable accommodation with the proportionality analysis is not without precedent. In
Eldridge, at para. 79, this Court stated that, in cases concerning s. 15(1) of the Canadian
Charter, "reasonable accommodation" was equivalent to the concept of "reasonable limits"
provided for in s. 1 of the Canadian Charter.
Cj[ 53 In my view, this correspondence between the legal principles is logical. In relation to
discrimination, the courts have held that there is a duty to make reasonable accommodationfor
individuals who are adversely affected by a policy or rule that is neutral on its face, and that
this duty extends only to the point at which it causes undue hardship to the party who must
perfonn it. Although it is not necessary to review all the cases on the subject, the analogy with
the duty of reasonable accommodation seems to me to be helpful to explain the burden
resulting from the minimal impairment test with respect to a particular individual, as in the case
at bar. In my view, Professor Jose Woehrling correctly explained the relationship between the
duty to accommodate or adapt and the Oakes analysis in the following passage [emphasis
added] :
[TRANSLA nON] Anyone seeking to disregard the duty to accommodate must
show that it is necessary, in order to achieve a legitimate and important legislative
objective, to apply the standard in its entirety, without the exceptions sought by the
,.l<>;TYl<>nt T\lff"\rp cnp(';f;('<>I1" ;n thp (,f"\ntpvt f"\f c 1 f"\f thp r<>narli<>n rlurrl"'.. ;t;c
51
necessary, in applying the test from R. v. Oakes, to show, in succession, that applying
the standard in its entirety constitutes a rational means of achieving thelegisbtive
objective, that no other means are available that would be less intrusive in relation to
the rights in question (minimal impairment test), and that there is proportionality
between the measure's salutary and limiting effects. At a conceptual level, the minimal
impainnent test, which is central to the section 1 analysis, corresponds in large part
with the undue hardship defence against the duty of reasonable accommodation in
the context-ofhuman rights legislation:-rhisis clear from the Supreme-Court's
judgment in Edwards Books, in which the application of the minimal impairment test
led the Court to ask whether the Ontario legislature, in prohibiting stores from
opening on Sundays and allowing certain exceptions for stores that were closed on
Saturdays, had done enough to accommodate merchants who, for religious reasons,
had to observe a day of rest on a day other than Sunday [emphasis added].
(1. Woehrling, "L'obligation d'accommodement raisonnable et I'adaptation de la
societe a la diversite religieuse" (1998), 43 McGill LJ. 325, at p. 360)
lJI 54 The council of commissioners' decision establishes an absolute prohibition against
Gurbaj Singh wearing his kirpan to school. The respondents contend that this prohibition is
necessary, because the presence of the kirpan at the school poses numerous risks for the
school's pupils and staff. It is important to note that Gurbaj Singh has never claimed a right to
wear his kirpan to school without restrictions. Rather, he says that he is prepared to wear his
kirpan under the above-mentioned conditions imposed by Grenier J. of the Superior Court.
Thus, the issue is whether the respondents have succeeded in demonstrating that an absolute
prohibition is justified.
lJI 55 According to the CSMB, to allow the kirpan to be worn to school entails the risks that
it could be used for violent purposes by the person wearing it or by another student who takes it
away from him, that it could lead to a proliferation of weapons at the school, and that its
presence could have a negative impact on the school environment. In support of this last point,
the CSMB submits that the kirpan is a symbol of violence and that it sends the message that the
use of force is the way to assert rights and resolve conflicts, in addition to undermining the
perception of safety and compromising the spirit of fairness that should prevail in schools, in
that its presence suggests the existence of a double standard. Let us look at those arguments.
7.2.2.1
Safety in Schools
en 56 According to the respondents, the presence of kirpans in schools, even under certain
conditions, creates a risk that they will be used for violent purposes, either by those who wear
them or by other students who might take hold of them by force.
en 57 The evidence shows that Gurbaj Singh does not have behavioural problems and has
never resorted to violence at school. The risk that this particular student would use his kirpan
for violent purposes seems highly unlikely to me. In fact, the CSMB has never argued that there
was a risk of his doing so.
52
lj[ 58 As for the risk of another student taldng his Idrpan away from him, it also seems to me
to be quite low, especially if the kirpan is worn under conditions such as were imposed by
Grenier J. of the Superior Court. In the instant case, if the Idrpan were worn in accordance with
those conditions, any student wanting to take it away from Gurbaj Singh would first have to
physically restrain him, then search through his clothes, remove the sheath from his guthra, and
try to unstitch or tear open the cloth enclosing the sheath in order to get to the kirpan. There is
no question that a student who wanted to commit an act of violence could find another way to
obtain a weapon, ~ch as bringing one in frogLoulside the school. Furthermore,-there are many
objects in schools that could be used to commit violent acts and that are much more easily
obtained by students, such as scissors, pencils and baseball bats.
'lI 59 In her brief reasons, Grenier 1. (Quebec Superior Court] explained that her decision was
based in part on the fact that (TRANSLATION] "the evidence revealed no instances of violent
incidents involving kirpans in schools in Quebec" and on "the state of Canadian and American
law on this matter" (at para. 6). lnfact, the evidence in the record suggests that, over the 100
years since Sikhs have been attending schools in Canada, not a single violent incident related
to the presence ofkirpans in schools has been reported. In the reasons for his interim order,
Tellier J. stated the following:
[TRANSLATION] [T]he Court is of the view that the school board would not suffer
any major inconvenience if an order were made under conditions required to ensure a
safe environment. The Court does not believe that the safety of the environment would
be compromised. In argument, it was stated that in the last 100 years, not a single
case of kirpan-related violence has been reported. Moreover, in a school setting, there
are usually all sorts of instruments that could be used as weapons during a violent
incident, including compasses, drawing implements and sports equipment, such as
baseball bats (emphasis added).
(Multani (Tuteur de) v. Commission scolaire Marguerite-Bourgeois, (2002] Q.J. No.
619 (QL) (Sup. Ct.), at para. 28)
en 60 The lack of evidence of risks related to the wearing of kirpans was also noted in 1990
by a board of inquiry of the Ontario Human Rights Commission, which considered the
presence of Idrpans in schools in great depth in Pandori v. Peel Bd. of Education (1990), 12
c.H.R.R. D/364; its decision was affirmed by the Ontario Divisional Court in Peel Board of
Education v. Ontario Human Rights Commission (1991), 3 O.R. (3d) 531, and leave to appeal
was refused by the Ontario Court of Appeal. The board of inquiry allowed kirpans to be worn
in Ontario schools under conditions similar to the ones imposed by Grenier 1. of the Quebec
Superior Court. The board noted that there had been no incidents involving Idrpans in Canadian
schools (at para. 176):
Respondent has underscored that a kirpan could have the function of a
weapon, but did not establish that a student had in fact so used it. In fact, there
is not a single incident to which the respondent could point when the Idrpan
was used on school property or its environs - either in Peel or anywhere in
Ontario or even all of Canada. Since Sikhs, and Khalsa among others, have
h~pn ;n thi" ("nl1nt,." fn,. np<>,.h, <> hllnrl,.~rl lIP<>,." th;" i" <> ,.p("n,.rl \Ilnrth
53
considering.
The decision was affirmed by the Ontario Divisional Court, which stated the following (at p.
535):
We can see no error in principle in the way it applied its judgment to the facts of this
case, particular,*in light of the lack of-any incident of kirpan-related violence in any
school system (emphasis added).
While noting the lack of kirpan-related incidents in schools, the Divisional Court summarized
the evidence submitted to it regarding the violent use of kirpans in locations other than schools
as follows (at pp. 532-33):
There have been, in the Metropolitan Toronto area, three reported incidents of
violent kirpan use. One involved a plea of guilty to attempted murder after a stabbing
with a kirpan. In one street fight, a man was stabbed in the back with a kirpan. In one
case, a kirpan was drawn for defensive purposes.
None of these incidents was associated with any school. The only incident
associated with a school was when a lO-year-old Sikh boy, walking home from
school, was assaulted by two older boys. He put his hand on the handle of his kirpan
before stepping back and running away, without drawing the kirpan from its sheath.
There is no evidence that a kirpan has ever been drawn or used as a weapon in any
school under the board's jurisdiction.
'" There is no evidence that kirpans have sparked a violent incident in any school,
no evidence that any other school board in Canada bans kirpans, and no evidence of a
student anywhere in Canada using a kirpan as a weapon.
<]I 62 The respondents maintain that freedom of religion can be limited even in the absence of
evidence of a real risk of significant hann, since it is not necessary to wait for the hann to
occur before correcting the situation [emphasis added]. They submit that the same line of
reasoning that was followed in R. v. Hothi, [1985] 3 W.W.R. 256 (Man. Q.B.) (affirmed on
appeal, [1986] 3 W.W.R. 671 (Man. C.A.)), and Nijjar v. Canada 3000 Airlines Ltd., [1999]
C.H.R.D. No.3 (QL), in which the wearing of kirpans was prohibited in courts and on airplanes,
should apply in this case. As was mentioned above, Lemelin J. of the Court of Appeal pointed
out that safety concerns are no less serious in schools.
<JI 63 There can be no doubt that safety is just as important in schools as it is on airplanes and
in courts. However, it is important to remember that the specific context must always be borne
in mind in resolving the issue. In Nijjar, Mr. Nijjar's complaint that he had been denied the right
54
to wear his kirpan aboard a Canada 3000 Airlines aircraft was dismissed because, inter alia, he
had failed to demonstrate that wearing a kirpan in a manner consistent with Canada 3000's
policies would be contrary to his religious beliefs. It was apparent from Mr. Nijjar's testimony
that wearing one particular type of kirpan rather than another was a matter of personal
preference, not of religious belief. While it concluded that Mr. Nijjar had not been
discriminated against on the basis of his religion, the Canadian Human Rights Tribunal did
nevertheless consider the issue of reasonable accommodation. It made the following comment
at para. 121 of its degsion:__ _~
In assessing whether or not the respondent's weapons policy can be
modified so as to accommodate Sikhs detrimentally affected, consideration
must be given to the environment in which the rule must be applied. In this
regard, we are satisfied that aircraft present a unique environment. Groups of
strangers are brought together and are required to stay together, in confined
spaces, for prolonged periods of time. Emergency medical and police
assistance are not readily accessible.
Then, at para. 123, the Tribunal distinguished the case before it from Pandori:
Unlike the school environment in issue in the Pandori case, where there is an
ongoing relationship between the student and the school and with that a meaningful
opportunity to assess the circumstances of the individual seeking the accommodation,
air travel involves a transitory population. Significant numbers of people are
processed each day, with minimal opportunity for assessment. It will be recalled that
Mr. Kinnear testified that Canada 3000 check-in personnel have between 45 and 90
seconds of contact with each passenger.
lJI 64 Hothi also involved special circumstances. The judge who prohibited the wearing of a
kirpan in the courtroom was hearing the case of an accused charged with assault under s. 245 of
the Criminal Code, R.S.C. 1985, c. C-46. Dewar C.J.Q.B. of the Manitoba Court of Queen's
Bench considered (at p. 259) the special nature of courts and stated the following about the
prohibition against wearing kirpans in courtrooms:
[It] serves a transcending public interest that justice be administered in an
environment free from any influence which may tend to thwart the process. Possession
in the courtroom of weapons, or articles capable of use as such, by parties or others is
one such influence.
'lI 65 The facts in the case at bar are more similar to the facts in Pandori than to those in
Nijjar and Hothi. The school environment is a unique one that pennits relationships to develop
among students and staff. These relationships make it possible to better control the different
types of situations that arise in schools. The Ontario board of inquiry commented on the special
nature of the school environment in Pandori, at para. 197:
rnllrtc "n~ cl"hnnlc "rp nnt I"nmn"r"hlp ;nctitlltinnc ('Inp ic " tin-htl"
55
circumscribed environment in which contending elements,adversarially
aligned, strive to obtain justice as they see it, with judge and/or jury
determining the final outcome. Schools on the other hand are living
communities which, while subject to some controls, engage in the enterprise of
education in which both teachers and students are partners. Also, a court
appearance is temporary (a Khalka Sikh could conceivably deal with the
prohibition of the kirpan as he/she would on an airplane ride) and is therefore
not comparableutCTthe years a student spendsin the school system:-----
rf 66 Although there is no need in the instant case for this Court to compare the desirable
level of safety in a given environment with the desirable level in a school environment, these
decisions show that each environment is a special case with its own unique characteristics that
justify a different level of safety, depending on the circumstances [emphasis added].
rf 67 Returning to the respondents' argument, I agree that it is not necessary to wait for
harm to be done before acting, but the existence of concerns relating to safety must be
unequivocally established for the infringement of a constitutional right to be justified. Given the
evidence in the record, it is my opinion that the respondents' argument in support of an
absolute prohibition - namely that kirpans are inherently dangerous - must fail [emphasis
added].
In the case before me, Mr. Strang relies on Mr. Campeau's evidence in support of his
position that it should be unnecessary "to wait for harm to be done" in the event that Mr.
Rogers is allowed to serve in an attend only capacity, given the existence of the safety
concerns which were clearly described by Mr. Campeau and Mr. Duquette. Mr. Strang's
argument also suggests that Mr. Campeau's and Mr. Duquette's unrefuted description of a
variety of accident scenes, where ambulances are summoned, including multiple accident
scenes, where limited response times must be met to afford sick and injured patients the best
chance of receiving life saving and life sustaining medical care, and where any impediment to
meeting the best standard of ambulance care can have dire health and safety consequences,
amounts to the unequivocal establishment of health and safety concerns that warrant the
Ministry of Health's and the employer's response: that the accommodation requested
represents an undue hardship and that the requirement is a BFOR which precludes such
accommodation.
Further in Multani, Charron J. stated in relation to speculative evidence:
7.2.2.2 Proliferation of Weapons in Schools
56
lJI 68 The respondents also contend that allowing Gurbaj Singh to wear his kirpan to schoo]
could have a ripple effect. They submit that other students who learn that orthodox Sikhs may
wear their kirpans will feel the need to ann themselves so that they can defend themselves if
attacked by a student wearing a kirpan.
lJI 69 This argument is essentially based on the one discussed above, namely that kirpans in
school pose a safety risk to other students, forcing them to arm themselves in turn in order to
defend themselv~~ F()Lthe reasons given abo~e,lam of the view that the-evidence does not
support this argument. It is purely speculative and cannot be accepted in the instant case: see
Eldridge, at para. 89. ...
The extent to which a risk is based on reason that is not "purely speculative," but is not
evidence based, was discussed in R. v. Butterian Brethren of Wilson Colony, [2007] AJ. No.
518 C.A. per. C. Conrad J.A.:
lJI 44 It is important to recall that the Province has not proposed any accommodation which
will alleviate the need for the Hutterian Brethren to be photographed as a condition of
licensing. ... This amounts to a fully-mandatory requirement that the photo is taken, and the
issue is thus whether the Province has succeeded in demonstrating that such an absolute
measure is justified: see Multani at para. 54.
lJI 48 While it is not necessary for the government to wait until harm has been done before
acting, it is necessary for it to "unequivocally establish" that the risk it raises actually exists:
Multani at para. 67. Here, there is no evidence of actual harm occurring, and [find that
aLthough the scenario the Province has suggested is possible, it is extremely unlikely. As a
result, [ am not satisfied that the risk the Province raises actually exists - history is the best
predictor of the future [emphasis added].
As noted, above, Mr. Blair, did not disagree with Mr. Campeau's or Mr. Duquette's
descriptions of the work performed by ambulance paramedics and in what settings. However,
he submitted that I should regard the evidence of the health and safety risk posed as purely
speculative, as described in para. 69 of Multani.
Mr. Campeau's and Mr. Duquette's descriptions of a number of scenarios involving the
provision of ambulance service in a variety of circumstances could not have been more real
and therefore does not qualify as "purely speculative." Nor were the health and safety concerns
expressed by them in any way speculative, in that their hypotheses lacked logical consistency. I
did not understand Mr. Blair as having taken any significant position refuting Mr. Campeau's
or Mr. Duquette's descriptions. Rather, he submitted that in considering the health and safety
57
risks posed by accommodating Mr. Rogers as an attend only paramedic, I had before me the
fact that for approximately 18 years some volunteer paramedics have been permitted to attend
only by virtue of the exemption created in the regulations. Furthermore, there was no evidence
that this had ever resulted in any of the concerns expressed by Messrs. Campeau and Duquette
being realized in actual practice. To the extent that there was before me evidence of long
--" ----
--. .----
experience of some volunteer paramedics serving in an attend only capacity without the
realization of the potential negative health and safety consequences described by Mr. Campeau
and Mr. Duquette, the concerns expressed by them should not be permitted to serve as an
impediment to Mr. Rogers I s being accommodated.
I am not being asked to find that the situations described by Messrs. Campeau and
Duquette are absent some potential risk to the health and safety of patients and others, or that
the requirement that paramedics in the land ambulance service have both driving and attending
qualifications are unrelated to those genuine health and safety concerns. What I am being
asked to find is that granting Mr. Rogers's request for accommodation would not impose on
patients or others an unacceptable health and safety risk, based on the real evidence available,
arising out of the experience of employing attend only volunteer paramedics.
The late Mr. Justice Oliver Wendell Holmes of the United States Supreme Court
famously said that "The life of the law is not logic but experience." In considering my decision
on this issue I am mindful of the context in which this case arose, with highly significant
implications for the health and safety of patients and others. I am also mindful of the
circumstances where Mr. Rogers, as a handicapped person, has a right to receive reasonable
accommodation. In doing so, considerable weight must be given to the absence of evidence
that the functioning of attend only volunteer paramedics has led to any actual detrimental
health and safety effects. If the evidence of attend only paramedics had existed for one month,
one year or even five years, I would have less confidence in its practical significance. However,
at some point in time, in the absence of any evidence manifesting an unreasonable risk to
health and safety, the extent of the risk has to be judged reasonable as a matter of common
sense. If this were not the case, it would not matter how long the experience without incident
had existed. It is only natural that management would think in terms of creating an optimally
58
safe ambulance service. I am satisfied that the Ministry keeps close tabs on the operation of the
ambulance service, including the work of volunteer paramedics who did not drive: that is,
those who were affected by the above-noted waiver provisions. In giving their evidence clearly
and with candour, neither of Messrs. Campeau nor Mr. Duquette suggested that the
employment of attend only volunteer paramedics had ever resulted in negative health and
--- ----
---- ---
~_. ---
safety consequence. They focussed on the potential for adverse health and safety effects. Nor
did they indicate that such negative infonnation would not have been recorded if it existed. It
would appear that those responsible for managing accident and related scenes for the
Ambulance Service have been able to develop methods that accommodate health and safety
concerns where attend only paramedics attend at accident scenes and at other site where
ambulances are called. That is, permitting attend only volunteer paramedics has been safely
integrated into the system.
This analysis applies to any comparable situation where a logical, hypothetical
(conditional, in a logical sense) conclusion is that there is an evident risk to health and safety,
and this conclusion confronts a reality based on experience that does not conform to the logical
analysis. That is, a theoretical construct, although based on fact, is used to deny the existence
of real world phenomena. It is unnecessary to be dogmatic and due deference can be afforded
the logic in Mr. Campeau's and Mr. Duquette's evidence, while tempering it with the
knowledge gained from evidence based, experiential facts.
I respect the extent of Mr. Campeau's considerable practical and scholarly expertise and
experience in the area of the delivery of land ambulance services and, as well, of Mr.
Duquette's experfence as a manager. Their evidence was consistent with the expressed goal of
managers in the Ministry of Health's Land Ambulance Programs: seeking to establish
standards in the Emergency Health Services Branch that provide the highest level of health and
safety standards to all who are served by ambulance paramedics. The closer the standard is to
providing an ideal service, the greater the likelihood that patients will receive the medical care
they require, promptly and competently. Mr. Campeau was frank in acknowledging that
sections of the regulations to the Ambulance Act which provided exceptions to otherwise
mandated requirements, such as s. 6(3) of O. Reg. 257/00, relieving volunteer paramedics from
59
holding an F licence, thus allowing them to serve in an attend only capacity, were introduced to
deal with a problem where insistence on the requirement, could have the effect of creating a
shortage of paramedics, especially in some northern areas and on some reserves. He observed
that almost no volunteers now served without possessing an F licence.
Mr. Campeau-alsonoted that for the sam-e reason that volunteenfnaveoeen permitted to
function without an F licence and in an attend only capacity, they have also been permitted to
serve as paramedics notwithstanding that they have not acquired all of the qualifications
required for attending, as provided for in the regulations to the Ambulance Act: See Ont. Reg.
257/00 s. 7(4) and see also s. 5(4) ibid which deals with non-volunteer paramedics. He viewed
these exceptions as necessary in order meet the service requirements of certain areas of the
province, the alternative being some under-serviced areas. At the same time, he looked forward
to a time when the reason for the exceptions would no longer prevail and volunteers would be
expected to have the same qualifications as full-time paramedics in all respects.
I am required to examine the facts before me to see if the accommodation requested on
behalf of Mr. Rogers represents an unreasonable risk to health and safety. In doing so, I am not
limited to considering the length of time that volunteer paramedics have been permitted to
serve in an attend only capacity without apparent incident in order to assess whether the risk
imposed thereby is a reasonable one. I can also consider other evidence that relates to the level
of risk imposed should Mr. Rogers be accommodated. The fact that he has acquired the full
statutory qualifications required of a paramedic and has had a long and successful career
carrying out emergency medical care attendant functions is also a relevant factor.
In their descriptions of various emergency situations to which ambulances respond, Mr.
Campeau and Mr. Duquette testified that among the reasons for transferring patients between
ambulances or transferring paramedics to other ambulances was the need to have a paramedic
with greater general or special expertise assigned to replace an initially responding attendant.
The evidence satisfies me that Mr. Rogers, being a fully trained paramedic with a great deal of
experience and additional training, is the kind of paramedic whose expertise would often be
called on in the circumstances described. I am satisfied that the risk imposed by
60
accommodating him is reasonable, given the absence of evidence of the negative health and
safety effects after approximately 18 years during which volunteer paramedics have been
permitted to serve in an attend only capacity. Furthermore, for the reasons given, based on the
special facts relevant to Mr. Rogers's case, patient care could be favourably affected should he
permitted to function in an attend only capacity.
It is somewhat ironic that if Mr. Rogers won the lottery and, being desir~us of
continuing in the work he loved, volunteered his service as an attend only paramedic, he would
be permitted to do so.
It is clear from the regulations that the nature of the work performed by volunteer
paramedics is the same as that performed by non-volunteers. Some suggestion was made that
the classification of paramedics into volunteers and non-volunteers was in some way relevant.
Given that the work they perform is the same, the classification of paramedics for payment or
labour relations purposes is irrelevant. My focus must be on the fact that the duties and
responsibilities of attend only full time paramedics would be the same as those of volunteer
attend only paramedics. The evidence that the latter have served for approximately 18 years,
although in small numbers, without evidence that in so doing have posed a manifested health
and safety risk, is what is significant in deciding whether allowing Mr. Rogers to 'do so by way
of accommodating his handicap would represent undue hardship. On the evidence adduced
before me, I conclude that it would not.
The fact that the government is not Mr. Rogers's employer does not matter. What does
matter is that it was, in promulgating. 6 (1) (f) of O. Reg. 257/00 of the Ambulance Act
engaging in an act of illegal discrimination. As was said in Renaud v. Central Okanagan
School District 23, [1992] 2 S.c.R. 970, per Sopinka J.:
<JI 32 ... Moreover, any person who discriminates is subject to the sanctions which the Act
provides. By definition (s. 1) a union is a person. Accordingly, a union which causes or
contributes to the discriminatory effect incurs liability. In order to avoid imposing absolute
liability, a union must have the same right as an employer to justify the discrimination. In order
to do so it must discharge its duty to accommodate.
61
In the case before me it is clear from s. 47(1) of the Code, that it "binds the Crown and every
agency of the Crown." I have already found that the discrimination in this case was not with
respect to the failure to afford Mr. Rogers the kind of relief as was granted in Grismer, to
demonstrate, in some other fashion, his qualifications for an F licence, which the union
_~cknowledged coul~_~otbe granted. Rather, it_~as_~ith respect to s. 6 (!L(1:2.J1aving had the
effect of precluding him from being accommodated so that he would not be required to drive
an ambulance.
My conclusion involves three parties, and, as in Renaud, calls for a "multi-party"
solution:
'II 43 The search for accommodation is a multi-party inquiry. Along with the employer and
the union, there is also a duty on the complainant to assist in securing an appropriate
accommodation. The inclusion of the complainant in the search for accommodation was
recognized by this Court in O'Malley. At page 555, McIntyre J. stated:
Where such reasonable steps, however, do not fully reach the desired end, the
complainant, in the absence of some accommodating steps on his own part such as an
acceptance in this case of part-time work, must either sacrifice his religious principles
or his employment.
What is important in determining a party's obligation to accommodate is whether it had
a role in the discrimination:
'II 35 As I have previously observed, the duty to accommodate only arises if a union is party
to discrimination. It may become a party in two ways.
The fact that it was the union in Renaud whose conduct was considered discriminatory
only demonstrates that the conclusion in that case applies equally to any person or entity
responsible for the discrimination. There being a multi-party duty, the question then becomes:
'II 34 These submissions raise for determination the extent of a union's obligation to
accommodate and how the discharge of that duty is to be reconciled and hannonized with the
employer's duty. ...
'II 39 While the general definition of the duty to accommodate is the same irrespective of
which of the two ways it arises, the application of the duty will vary. A union which is liable as
a co-discriminator with the employer shares a joint responsibility with the employer to seek to
accommodate the employee.
62
In Renaud, Sopinka J. stated, referring to the role of the union in that case:
IJ[ 36 First, it may cause or contribute to the discrimination in the first instance by
participating in the fonnulation of the work rule that has the discriminatory effect on the
complainant.
In the case b~~r~me, the effect on Mr~_Bogers of the regulation~a~discriminatory, as
it prevented the employer from considering reasonable accommodation. Given that the
government and the employer have a legitimate and ongoing interest in the health and safety
implications arising from my ruling, as in Renaud, they would be expected to engage in the
multi-party exercise there described in any subsequent case involving similar facts. On the
facts of the case before me, I have found that the regulation did discriminate against Mr.
Rogers and that accommodation sought by him to work as an attend only paramedic would not
give rise to undue hardship, as referred to in s. 11 (2) or s. 17 (2) of the Code. In arriving at this
conclusion I am mindful of the stipulated fact that there is no issue with respect to any problem
that might be experienced with other paramedics in having Mr. Rogers serve in an attend only
capacity, as they have agreed to the arrangement whereby they would perform the driving
function when he was partnered with them.
Remedy
In reaching my conclusions, I am mindful of Mr. Strang's concern that my decision
cannot interfere with the Crown's power to promulgate regulations. I have already referred to
this concern in my introduction to the part of this decision concerning whether discrimination
has been established. Nevertheless, I wish to expand on this subject in order to emphasize that
my decision in no way challenges the Crown's regulation making powers. In Hogan, dealing
with the subject of remedy and compliance, the Tribunal stated:
Discussion and Analysis of Law
l)f 142 The Tribunal's authority to make orders against a respondent to achieve compliance
with the Code and to make restitution including monetary awards for the infringement of a right
is found in subsection 41(1) of the Code. That subsection is reproduced below:
41.(1) Wh"r" th" Trihlln"l "ftpr" h""rinCT f,nrl" th"t.. riCTht nfthp f'nmnl",n"nt
63
under Part I has been infringed and that the infringement is a contravention
of section 9 by a party to the proceeding, the Tribunal may, by order,
(a) direct the party to do anything that, in the opinion of the Tribunal, the
party ought to do to achieve compliance with this Act, both in respect of
the complaint and in respect of future practices; and
(b) direct the party to make restitution, including monetary compensation, for
loss arising out of the infringement, and, where the infringement has been
engaged in wilfully or recklessly, monetary compensation may include an
award, not exceeding $10,000, for mental anguish.
Cj[ 144 Like the protection provisions in Part I of the Code, these provisions should be given a
broad and liberal interpretation to achieve the legislative philosophy and objective of the Code.
A broad and liberal construction must be done within the factual context, taking into
consideration other binding legal principles.
To Achieve Compliance
Cj[ 145 Clause 39(l)(a) of the Code requires that where the Tribunal uses its discretionary
power under section 41, to make an order, that order must be appropriate, that is, it must not be
unrealistic or lead to unrealistic results.
lj[ 146 Under clause 41 (1)(a), the Tribunal is given the authority to use its discretion to make
an order directing a respondent to do anything, which in its opinion, the party ought to do to
achieve compliance with the Code to remedy the complaint and in respect of future practices.
Implicitly, in fashioning an appropriate order, binding legal principles and the specific facts
before the Tribunal must be considered. In tailoring an appropriate order in this case several
principles must be given due consideration, all with a single purpose, which is, to uphold the
values protected under the Code. First, there is section 11 of the Code, which requires a finding
of constructive discrimination where a neutral requirement has a disproportionate impact on a
complainant. Second, there are clauses 39(l)(a) and 41(l)(a) that together mandates that a
remedial order be appropriate. Third, there is subsection 47(2) that iterates the legislative
intention to uphold the objective of the Code by giving primacy to it over other Acts. Fourth,
there is the principle vis-a-vis government as a respondent where it has exercised its legislative
representative function, especially where there are two competing public interests, and in doing
so, its conduct was not "clearly wrong", not done in bad faith or was not an abuse of power.
These factors animate and inform the appropriateness of the order.
1[ 147 By subsection 47(2), the Ontario legislature has given the Code primacy over all other
legislative enactments and has given clear direction on how this primacy can be asserted within
defined circumstances. By doing so, Ontario binds itself and all of its agencies: subsection
47(1). Thus, where provisions of the Code are inconsistent with the provision in another
provincial law, the provisions of the Code must apply. (See Tranchemontagne v. Ontario
(Director, Disability Suppon Program), [2006] 1 S.C.R. 513, at para. 34).
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<J[ 148 Applying subsection 47(2) to this case, the majority concludes that subsection 47(2)
leads to the result that the grandparent provision [in the regulation] is inapplicable vis-a-vis
these Complainants only because it is inadequate given their unique circumstances. That is so
because the grandparent provision does not satisfy the requirement to accommodate the
Complainants without undue hardship as mandated in subsection 11(2) of the Code, which is a
constructive violation of section 1. Its application does not lead to the invalidation of Reg.
528/98; nor does it lead to a ruling that Regulation 528/98 is inapplicable or inoperative. As the
majority found~th~~nactment of Regulation ~28/98 was a proper use~of legislative power,
which was reasonable, and done in good faith.
For the reasons stated above, I declare that applying subsection 47 (2) of the Code
to the facts of this case results in s. 6 (1)(0 of O. Reg. 257/00 of the Ambulance Act being
inapplicable because "it authorizes conduct that is a [constructive] contravention of [s. 5
of] Part I", in that it does not satisfy the requirement to accommodate Mr. Rogers as
mandated in s. 11 (2) and s. 17 (2) of the Code. The employer is therefore directed to
carry out the implementation of this accommodation order. On the evidence before me, I
conclude that Mr. Rogers could be accommodated in the attend only paramedic job
without imposing undue hardship on either the Ministry or the employer.
As in Hogan: "Its application does not lead to the invalidation of [so 6 (l)(t) of O. Reg.
257/00]; nor does it lead to a ruling that [the regulation] is inapplicable or inoperative" in other
cases. As in Hogan, in this case with respect to s. 6 (l)(t), its "enactment ...was a proper use of
legislative power, which was reasonable, and done in good faith." In the result I order that
Mr. Rogers be returned to his former position as a paramedic, however, in an attend only
capacity. As was the ruling in Hogan (in <J[ 150) "there is no need to direct [the Crown] to do
anything to achieve compliance "because the conduct, which is a contravention of Part I, was
the failure to accommodate... [Mr. Rogers] because of disability... ."
As was noted in ljf 151 of Hogan, "this decision applies only to the [grievance] before
[me], and is not binding on future decision-makers."
The majority of the Tribunal went on to say:
lJ! 152 Regarding the inappropriateness, as noted above, the majority presumes that the
Tribunal must consider any legal principle that would influence the appropriateness of its order.
Directing Ontario not to apply the regulation, would be at odds with the common law
constitutional principle that courts and tribunals must give deference to Cabinet's regulatory
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function, especially where the Cabinet was mediating between the claims of competing groups,
in striking a balance, it is not forced to know with absolute certainty how the balance ought to
be struck. It is apt to iterate at this juncture, that the line of cases with respect to deference to
"legislative representative function" are equally applicable to the Executive's or Cabinet's
regulatory function because the power to pass regulations is integral to the Legislature's policy-
making function, which has been properly delegated to the Executive or Cabinet. The problems
flowing from ignoring that principle are many: it imposes a high standard for the minimum
impairment provision under a section IlQzarter) analysis; it eliminatesthe-deference principle;~--
the threshold for establishing that government's conduct was not clearly wrong, in bad faith or
an abuse of power would be markedly lowered; and as a lawmaker, the Legislature could be
held accountable for hann caused to an individual following the enactment of legislation.
Simply stated, the "floodgate" fears would be a definite reality because every person affected
by the discontinuance of government's services, in particular under the health insurance scheme,
would assert claims for some treatment that was delisted. That would be a fatal blow to the rule
with respect to the legislative representative function, and the effectiveness and efficiency of
government's action would be excessively constrained.
<JI 153 In sum, the majority is content that the Order issued in its Decision and Partial
Remedy and Reasons, Hogan (No.3), is appropriate to meet the requirements of subsection 11,
clauses 39(1)(a) and 41(1)(a), subsection 47(2) of the Code, and yet uphold the constitutional
principle of deference to Cabinet's regulatory function.
What the majority did in Hogan (at para. 147) was to follow para. 34 of
Tranchemontagne so that the regulation would not be applied to the facts of the
immediate case because it conflicted with the Code:
en 34 The importance of the Code is not merely an assertion of this Court. The Ontario
legislature has seen fit to bind itself and all its agents through the Code: s. 47(1). Further, it has
given the Code primacy over all other legislative enactments: s. 47(2). As a result of this
primacy clause, where provisions of the Code conflict with provisions in another provincial law,
it is the provisions of the Code that are to apply.
Para. 34 of Tanchemontagne is explained in para. 35:
en 35 This primacy provision has both similarities and differences with s. 52 of the
Constitution Act, 1982, which announces the supremacy of the Constitution. In terms of
similarities, both provisions function to eliminate the effects of inconsistent legislation. At the
end of the day, whether there is a conflict with the Code or the Constitution, the ultimate effect
is that the other provision is not followed and, for the purposes of that particular application, it
is as if the legislation was never enacted. But in my view, the differences between the two
provisions are far more important. A provision declared invalid pursuant to s. 52 of the
Constitution Act, 1982 was never validly enacted to begin with. It never existed as valid law
because the legislature enacting it never had the authority to pass it. But when a provision is
inapplicable pursuant to s. 47 of the Code, there is no statement being made as to its validity.
The legislature had the power to enact the conflicting provision; it just so happens that the
legislature also enacted another law that takes precedence.
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Thus, what the majority of the Tribunal meant was that while the regulation
continued to apply, it would merely be inapplicable in the case before them pursuant to
s. 47 of the Code.
This conclusion also applies to the case before me.
I ----
In addition to the above order, Mr. Blair requested: (1) That Mr. Rogers be compensated
for lost wages for the periods that he was employed as other than as a paramedic; (2) That Mr.
Rogers's earnings should be "topped-up" during the period he has been in receipt of disability
insurance payments to reflect the difference between the insurance payments and those he
would receive as a paramedic; and (3) That an award be made to recognize the impact of the
violation on Mr. Rogers's dignity. There were further claims with respect to additional
damages and with respect to a claim against the Crown for costs.
With respect to the claim against the Crown for costs, I do not regard this to be a
case where such an order is called for.
I further order that Mr. Rogers be compensated for lost wages for the period(s)
that he was employed as other than as a paramedic. I retain jurisdiction to deal with any
difficulties the parties may experience in implementing this order.
Given the somewhat unusual nature of the grievance, arising as it did as a result of
the existence of a regulation, having reviewed my notes and the authorities relied on,
while retaining jurisdiction to deal with them, I am remitting to the parties the other
matters relating to relief raised by Mr. Blair in order to see whether they can arrive at a
mutually agreeable resolution. If they cannot, I will reconvene the hearing to deal with
them, preferably by the submission of written argument supported by legal authorities.
Because of my finding that Mr. Rogers is entitled to the accommodation sought by him
as an attend only paramedic, it is unnecessary for me to deal with his subsidiary requests for
accommodation as a float or as the dri ver of an Emergency Response Vehicle.
Delivered at Toronto, this 9th day of July, 2007.
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'?72 _ .Air _ --!E!;!;
M.R. Gorsky - Arbitrator
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