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Supreme Court of Canada

Civil rights—Alleged discrimination on basis of age—Firemen dismissed at age 60 pursuant to collective agreement—Whether or not mandatory retirement a bona fide occupational qualification—The Ontario Human Rights Code, R.S.O. 1970, c. 318, ss. 4(1),(6), 14a, 14d, as amended.

This appeal concerned the construction of s. 4(6) of The Ontario Human Rights Code. Appellants Hall and Gray, Firemen employed by Etobicoke, each Filed a complaint under the Code because of their forced retirement at age sixty pursuant to a clause in a collective agreement. A one-man board of inquiry (Dunlop) found appellants’ forced retirement to be a refusal to employ contrary to s. 4(1)(b) of the Code, and ordered their reinstatement with compensation subject to their possessing the physical and mental capacities required to perform their jobs. The Divisional Court’s judgment allowing an appeal from the board of inquiry was upheld at the Court of Appeal.

Held: The appeal should be allowed.

The employer has not shown that compulsory retirement is a bona fide occupational qualification and requirement for the employment concerned. A bona fide occupational qualification must be imposed honestly, in good faith, and in the sincerely held belief that it is imposed in the interests of adequate performance of the work involved with reasonable dispatch, safety and economy and not for ulterior or extraneous reasons that could defeat the Code’s purpose. The qualification must be objectively related to the employment concerned, ensuring its efficient and economical performance without endangering the employee or others. Evidence as to the duties to be performed and the relationship between

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the aging process and the safe, efficient performance of those duties is imperative, with statistical and medical evidence being of more weight than the impressions of persons experienced in the field.

As the Code was enacted for the general benefit of the community and its members, its provisions cannot be waived or varied by a collective agreement.

Re Ontario Human Rights Commission and City of North Bay (1977), 21 O.R. 607 (Ont. C.A.), affirming 17 O.R. (2d) 712, considered; Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (1974); Little v. Saint John Shipbuilding and Drydock Co. Ltd. (1980), 1 C.H.R.R. 1; Equitable Life Assurance Society of the United States v. Reed, [1914] A.C. 587; Re Estate of Charles Millar, Deceased, [1938] S.C.R. 1; Fender v. Mildmay, [1937] 3 All E.R. 402; R. v. Roma, [1942] 3 W.W.R. 525; Outen v. Stewart and Grant and City of Winnipeg, [1932] 3 W.W.R. 193; Dunn v. Malone (1903), 6 O.L.R. 484, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from a judgment of the Divisional Court allowing an appeal from an order made by a board of inquiry appointed pursuant to The Ontario Human Rights Code. Appeal allowed.

J. Polika, Q.C., for the appellants.

Douglas K. Gray and R. Ross Dunsmore, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—This appeal concerns the construction of The Ontario Human Rights Code, R.S.O. 1970, c. 318, s. 4(6), as amended, in a case where it is alleged that a mandatory retirement at age sixty, provided for in a collective agreement, contravenes the provisions of the Code by discriminating against certain employees on the basis of age.

The individual appellants Hall and Gray were employed by the respondent municipality as firefighters. The terms of their employment were contained in a collective agreement which provided that the firefighters would be compulsorily retired at age sixty. Hall and Gray attained that age and

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their employment was terminated. Each filed a complaint under The Ontario Human Rights Code. The Minister of Labour, pursuant to the provisions of s. 14a of the Code, appointed one Bruce Dunlop as a board of inquiry. He decided after a hearing that the compulsory retirement of the appellants amounted to a refusal to employ, or to continue to employ them, contrary to s. 4(1)(b) of the Code. He rejected the employer’s defence that the compulsory retirement at age sixty constituted a bona fide occupational qualification and requirement for the position or employment within s. 4(6) of the Code. He ordered the reinstatement of the appellants provided that they continued to possess the requisite physical and mental capacities to carry out their jobs. He ordered, as well, compensation for loss of earnings from the date of retirement to the date of reinstatement.

An appeal was taken by the respondent to the Divisional Court (O’Leary, Osborne JJ., Cory J. dissenting). O’Leary J., for the majority, in allowing the appeal adopted the test for a bona fide occupational qualification and requirement which had been propounded by Professor R.S. McKay, acting as a board of inquiry in another case concerning the firefighters of the City of North Bay. That case raised the same issue which presents itself here. On the appeals in the North Bay case the McKay test was adopted in the Divisional Court and the Court of Appeal (see: Re Ontario Human Rights Commission and City of North Bay (1977), 17 O.R. (2d) 712 in the Divisional Court and 21 O.R. (2d) 607 in the Court of Appeal). The McKay test provides that to be a bona fide qualification and requirement the limitation complained of must be imposed honestly, that is in good faith, and not based on any extraneous or ulterior motive, and it must bear a reasonable relationship to the circumstances of the employment. He said: “In other words, although it is essential that a limitation be enacted or imposed honestly or with sincere intentions it must in addition be supported in fact and reason ‘based on the practical reality of the work a day world and of life’.”

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Professor Dunlop, in the case at bar, propounded his test in these words:

The meaning of “bona fide” that seems most consistent with this objective would be “real” or “genuine” i.e. that there is a sound reason for imposing an age limitation and the onus of establishing this justification for discrimination is on the person alleging it to be justified.

In a further hearing, called to deal with compensation to be paid, the employer argued that Professor Dunlop had applied an incorrect test, asserting that he should have applied the test developed in the North Bay case by Professor McKay. In his supplementary reasons, dated December 7, 1978, Professor Dunlop expressed the opinion that the test he had formulated, and that of Professor McKay, were in essence the same, aimed at the same result and endeavouring to deal with the same problems. He declined to alter his earlier disposition in favour of the complainants. A further appeal to the Court of Appeal was dismissed when the court simply adopted the majority reasons of O’Leary J. in the Divisional Court. The appellants appealed to this Court by leave, granted November 3, 1980.

The Ontario Human Rights Code commences with a preamble, which declares the purpose of the enactment and declares public policy in Ontario, in the following words:

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 Declaration of Human Rights as proclaimed by the United Nations;

AND WHEREAS it is public policy in Ontario that every person is free and equal in dignity and rights without regard to race, creed, colour, sex, marital status, nationality, ancestry or place of origin;

AND WHEREAS these principles have been confirmed in Ontario by a number of enactments of the Legislature;

AND WHEREAS it is desirable to enact a measure to codify and extend such enactments and to simplify their administration;

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Part I prohibits discrimination in general terms and the publication of signs or notices indicating an intention to discriminate for any purpose because of race, creed, colour, sex, marital status, nationality, ancestry or place of origin. Section 2 forbids discrimination on those bases in respect of admission to and use of public facilities, while s. 3 prohibits similar discrimination in respect of rental of commercial or housing accommodation. Section 4, which is the section in issue in the case at bar, prohibits discrimination in connection with employment. Subsection (1) is expressed in these terms:

4.—(1) No person shall,

(a) refuse to refer or to recruit any person for employment;

(b) dismiss or refuse to employ or to continue to employ any person;

(c) refuse to train, promote or transfer an employee;

(d) subject an employee to probation or apprenticeship or enlarge a period of probation or apprenticeship;

(e) establish or maintain any employment classification or category that by its description or operation excludes any person from employment or continued employment;

(f) maintain separate lines of progression for advancement in employment or separate seniority lists where the maintenance will adversely affect any employee; or

(g) discriminate against any employee with regard to any term or condition of employment,

because of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin of such person or employee.

An exception to the application of the above provisions is provided in subs. (6), which is reproduced hereunder:

(6) The provisions of this section relating to any discrimination, limitation, specification or preference for a position or employment based on age, sex or marital status do not apply where age, sex or marital status is a bona fide occupational qualification and requirement for the position or employment.

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Part II continues the Ontario Human Rights Commission and outlines its duties. Part HI provides for the resolution of complaints. Section 14 and the subsequent sections in Part III set out the procedure to be followed in dealing with complaints. In s. 14d a right of appeal to the courts is given. The scope of the judicial appeal created by s. 14d is broad and is expressed in these terms:

14d.—(1) Any party to a hearing before a board may appeal from the decision or order of the board to the Supreme Court in accordance with the rules of court.

(2) Where notice of an appeal is served under this section, the board shall forthwith file in the Supreme Court the record of the proceedings before it in which the decision or order appealed from was made, which, together with a transcript of the oral evidence taken before the board if it is not part of the record of the board, shall constitute the record in the appeal.

(3) The Minister is entitled to be heard, by counsel or otherwise, upon the argument of an appeal under this section.

(4) An appeal under this section may be made on questions of law or fact or both and the court may affirm or reverse the decision or order of the board or direct the board to make any decision or order that the board is authorized to make under this Act and the court may substitute its opinion for that of the board.

Part IV provides for prosecution for breaches of the Act and Part V provides for definitions, that of the word ‘age’ appearing in these terms: “ ‘age’ means any age of forty years or more and less than sixty-five years”.

The case at bar involves complaints of discrimination in respect of employment on account of age. It was common ground that the compulsory retirement at age sixty constituted a refusal to employ or continue to employ the complainants. While discrimination on the basis of age is in terms forbidden in s. 4 of the Code, in accordance with subs. (6) an employer may discriminate on that basis where age is a bona fide occupational qualification and requirement for the position or employ-

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ment involved. Where such bona fide occupational qualification and requirement is shown the employer is entitled to retire employees regardless of their individual capacities, provided only that they have attained the stated age. It will be seen at once that under the Code non‑discrimination is the rule of general application and discrimination, where permitted, is the exception.

Once a complainant has established before a board of inquiry a prima facie case of discrimination, in this case proof of a mandatory retirement at age sixty as a condition of employment, he is entitled to relief in the absence of justification by the employer. The only justification which can avail the employer in the case at bar, is the proof, the burden of which lies upon him, that such compulsory retirement is a bona fide occupational qualification and requirement for the employment concerned. The proof, in my view, must be made according to the ordinary civil standard of proof, that is upon a balance of probabilities.

Two questions must be considered by the Court. Firstly, what is a bona fide occupational qualification and requirement within s. 4(6) of the Code and, secondly, was it shown by the employer that the mandatory retirement provisions complained of could so qualify? In my opinion, there is no significant difference in the approaches taken by Professors Dunlop and McKay in this matter and I do not find any serious objection to their characterization of the subjective element of the test to be applied in answering the first question. To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

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The answer to the second question will depend in this, as in all cases, upon a consideration of the evidence and of the nature of the employment concerned. As far as the subjective element of the matter is concerned, there was no evidence to indicate that the motives of the employer were other than honest and in good faith in the sense described. It will be the objective aspect of the test which will concern us. We all age chronologically at the same rate, but aging in what has been termed the functional sense proceeds at widely varying rates and is largely unpredictable. In cases where concern for the employee’s capacity is largely economic, that is where the employer’s concern is one of productivity, and the circumstances of employment require no special skills that may diminish significantly with aging, or involve any unusual dangers to employees or the public that may be compounded by aging, it may be difficult, if not impossible, to demonstrate that a mandatory retirement at a fixed age, without regard to individual capacity, may be validly imposed under the Code. In such employment, as capacity fails, and as such failure becomes evident, individuals may be discharged or retired for cause.

Faced with the uncertainty of the aging process an employer has, it seems to me, two alternatives. He may establish a retirement age at sixty-five or over, in which case he would escape the charge of discrimination on the basis of age under the Code. On the other hand, he may, in certain types of employment, particularly in those affecting public safety such as that of airline pilots, train and bus drivers, police and firemen, consider that the risk of unpredictable individual human failure involved in continuing all employees to age sixty-five may be such that an arbitrary retirement age may be justified for application to all employees. In the case at bar it may be said that the employment falls into that category. While it is no doubt true that some below the age of sixty may become unfit for firefighting and many above that age may remain fit, recognition of this proposition affords no assistance in resolving the second question. In an occupation where, as in the case at bar, the employer seeks to justify the retirement in the interests of public safety, to decide whether a bona

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fide occupational qualification and requirement has been shown the board of inquiry and the court must consider whether the evidence adduced justifies the conclusion that there is sufficient risk of employee failure in those over the mandatory retirement age to warrant the early retirement in the interests of safety of the employee, his fellow employees and the public at large.

The employer argued that firefighting was a dangerous occupation which required physical strength, stamina and alertness beyond most other occupations. It contended that there were such dangers and hazards that young and fit men were required, and that the adequate performance of all members of a firefighting unit was essential to preserve public safety and that of the employees themselves. The arbitrary retirement age was therefore justified as a reasonable measure to assure the maintenance of adequate fire protection in the municipality and, at the same time, to avoid the dangers which could result from keeping all members employed until age sixty-five.

In dealing with the evidence Professor Dunlop remarked that it was largely “impressionistic”. He considered that something more was required to discharge the burden of proof and noted the insufficiency of general assertions and expressions of witnesses, some with long experience in firefighting, to the effect that firefighting was a “young man’s game”. He remarked upon the absence of any scientific evidence to support the employer’s position and concluded against the employer, saying:

While these are sound reasons for allowing a firefighter to retire at the age of 60, they do not seem to me to be reasons for compelling it, absent some scientific or statistical data to prove that beyond the age of 60 firefighters become less effective and less safe.

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He also gave it as his opinion that the main or one of the main reasons the arbitrary retirement age had been established was to create uniformity throughout the municipalities in the Province of Ontario. There was evidence that some sixty per cent had established such a retirement policy and, as well, that the union representing the firefighters had pressed for the early retirement as a benefit for employees.

In the Divisional Court the evidence was canvassed and the majority of the court took a different view. It commented on the reference made by the board of inquiry to scientific evidence and seemed to be of the opinion that the decision turned on its absence. The majority then concluded that on all the evidence before the board the respondent had made out a justification showing that the compulsory retirement was a bona fide occupational qualification and requirement under s. 4(6).

The majority of the Divisional Court thus chose to review the evidence and substitute its views for those of the board of inquiry on the conclusions to be drawn. In this, as has been pointed out above, it was supported by the Court of Appeal. The majority of the Divisional Court apparently acted under the broad powers given the court upon an appeal from a decision or order of a board of inquiry in s. 14d(4) of the Code. The appellate court is specifically empowered to review the evidence and substitute its own findings for those of the board of inquiry and, while I acknowledge the importance of the general principle expressed by Hughes J. in the North Bay case, at p. 716, regarding interference with findings of fact made at first instance, it cannot be said, as was argued by the appellant before us, that it will always be error for an appellate court acting under the broad powers so conferred to negate findings made below. However, in the circumstances of this case, with the utmost deference to the views of the majority in the Divisional Court and to those of the Court of Appeal, I am of the view that the evidence adduced before the board of inquiry was inadequate to discharge the burden of proof lying

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upon the employer. In my opinion, the appeal must succeed and the judgment of the board of inquiry be restored.

It would be unwise to attempt to lay down any fixed rule covering the nature and sufficiency of the evidence required to justify a mandatory retirement below the age of sixty-five under the provisions of s. 4(6) of the Code. In the final analysis the board of inquiry, subject always to the rights of appeal under s. 14d of the Code, must be the judge of such matters. In dealing with the question of a mandatory retirement age it would seem that evidence as to the duties to be performed and the relationship between the aging process and the safe, efficient performance of those duties would be imperative. Many factors would be involved and it would seem to be essential that the evidence should cover the detailed nature of the duties to be performed, the conditions existing in the work place, and the effect of such conditions upon employees, particularly upon those at or near the retirement age sought to be supported. The aging process is one which has involved the attention of the medical profession and it has been the subject of substantial and continuing research. Where a limitation upon continued employment must depend for its validity on proof of a danger to public safety by the continuation in employment of people over a certain age, it would appear to be necessary in order to discharge the burden of proof resting upon the employer to adduce evidence upon this subject.

I am by no means entirely certain what may be characterized as “scientific evidence”. I am far from saying that in all cases some “scientific evidence” will be necessary. It seems to me, however, that in cases such as this, statistical and medical evidence based upon observation and research on the question of aging, if not in all cases absolutely necessary, will certainly be more persuasive than the testimony of persons, albeit with great experience in firefighting, to the effect that firefighting is “a young man’s game”. My review of the evidence leads me to agree with the board of inquiry. While the evidence given and the views expressed were, I am sure, honestly advanced, they were, in my view, properly described as “impressionistic”

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and were of insufficient weight. The question of sufficiency and the nature of evidence in such matters has been discussed in various cases, and of particular interest are: Hodgson vGreyhound Lines, Inc., 499 F.2d 859 (1974); Little v. Saint John Shipbuilding and Drydock Co. Ltd. (1980), 1 C.H.R.R. 1.

A further argument must be dealt with. The respondent in paragraph 38 of its factum, noting that the mandatory retirement had been agreed upon in the collective agreement with the union representing the appellants, submitted:

It is submitted that where the parties engage in the statutorily-required bargaining, and as a result thereof agree, in good faith, on a standard retirement age based, in part, on the particular rigours and demands of the job of fire-fighting, then the resulting qualification and requirement must be considered to be “bona fide” in the absence of evidence that the limitation was inserted for an ulterior purpose.

While this submission is that the condition, being in a collective agreement, should be considered a bona fide occupational qualification and requirement, in my opinion to give it effect would be to permit the parties to contract out of the provisions of The Ontario Human Rights Code.

Although the Code contains no explicit restriction on such contracting out, it is nevertheless a public statute and it constitutes public policy in Ontario as appears from a reading of the Statute itself and as declared in the preamble. It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy. In Halsbury’s Laws of England, 3rd ed., vol. 36, p. 444, para. 673, the following appears:

673. Waiver of statutory rights. Individuals for whose benefit statutory duties have been imposed may by contract waive their right to the performance of those duties, unless to do so would be contrary to public policy or to the provisions or general policy of the statute imposing the particular duty or the duties are imposed in the public interest.

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And in the fourth edition of the same work the following is to be found in vol. 9, p. 289, para. 421:

421. Contracting out. As a general rule, any person can enter into a binding contract to waive the benefits conferred on him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that it would be contrary to public policy to allow such an agreement. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement; and, in certain circumstances, it is expressly provided that any such agreement shall be void.

By way of example of an exception to the general rule, an agreement between an employer and employee whereby the latter agrees to waive a statutory duty imposed on the former in the interests of safety is generally not binding on the employee.

English authority expressing this principle is to be found in Equitable Life Assurance Society of the United States v. Reed, [1914] A.C. 587. The question of the enforcement of a contract contrary to public policy is generally dealt with by Duff C.J. in Re Estate of Charles Millar, Deceased, [1938] S.C.R. 1, where reference is made to Fender v. Mildmay, [1937] 3 All E.R. 402, and other authorities. Examples of the application of the principle are such cases as R. v. Roma, [1942] 3 W.W.R. 525; Outen v. Stewart and Grant and City of Winnipeg, [1932] 3 W.W.R. 193, and Dunn v. Malone (1903), 6 O.L.R. 484. The Ontario Human Rights Code has been enacted by the Legislature of the Province of Ontario for the benefit of the community at large and of its individual members and clearly falls within that category of enactment which may not be waived or varied by private contract; therefore this argument cannot receive effect.

For these reasons I would allow the appeal with costs and reinstate the order of the board of inquiry.

Appeal allowed with costs.

Solicitor for the appellants: H. Allan Leal, Toronto.

Solicitors for the respondent: Hinks, Morley, Hamilton, Stewart, Storie, Toronto.

 

 

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