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Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489

 

Alberta Human Rights Commission                                                                                Appellant

 

v.

 

Central Alberta Dairy Pool       Respondent

 

and

 

The Canadian Human Rights Commission,

Canadian Jewish Congress and

Seventh‑day Adventist Church in Canada                                                                      Interveners

 

indexed as:  central alberta dairy pool v. alberta (human rights commission)

 

File No.:  20850.

 

1989:  October 13; 1990:  September 13.

 

Present:  Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Cory and McLachlin JJ.

 

on appeal from the court of appeal for alberta

 

    Civil rights ‑‑ Freedom of religion ‑‑ Adverse effect discrimination ‑‑ Employer requiring work on Monday because of demands imposed by nature of business ‑‑ Employee's religion requiring observance of Easter Monday ‑‑ Whether the employer's rule could be upheld as a bona fide occupational qualification ‑‑ If not, whether respondent could demonstrate accommodation of complainant's religious beliefs up to the point of undue hardship ‑‑ If so, whether the respondent reasonably accommodated the complainant's religious beliefs ‑‑ Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, s. 7(1), (3).

 

    The complainant launched a complaint against the respondent alleging that it refused to continue to employ him because of his religion, contrary to s. 7(1) of the Individual's Rights Protection Act.  The complainant's religion required that he not work on his Sabbath and holy days.  There was a general understanding that employees work during "working days" but this "rule" was not inflexible and complainant had been accommodated on at least one occasion.  The respondent refused complainant's request for leave without pay for Easter Monday because of its particularly onerous operational requirements on Mondays.  The complainant was informed that if he failed to report to work on Easter Monday his employment would be terminated.  He did not report for work and was dismissed.

 

    The Board of Inquiry established pursuant to the Act found that the respondent had discriminated against the complainant contrary to s. 7 of the Act and ordered the respondent to pay him partial compensation for his lost wages.  An appeal to the Alberta Court of Queen's Bench was allowed by MacNaughton J. and affirmed by the Alberta Court of Appeal.

 

    At issue here were:  (1) whether the employer's rule could be upheld as a bona fide occupational qualification (BFOQ) under s. 7(3) of the Act; (2) if not, whether it was still open to the respondent to demonstrate that it had accommodated the complainant's religious beliefs up to the point of undue hardship; and (3) if so, whether the respondent reasonably accommodated the complainant's religious beliefs?

 

    Held:  The appeal should be allowed.

 

    Per Dickson C.J. and Wilson, L'Heureux‑Dubé and Cory JJ.:  Bona fide occupational qualification and bona fide occupational requirement are equivalent and co‑extensive terms.

 

    Direct and adverse effect discrimination ought to be distinguished for purposes of determining the appropriate response to a prima facie case of discrimination.  A rule established by the employer which fits into the category of "direct discrimination" and which is not saved by any statutory justification is simply struck down.  It can only stand if it is valid in its application to all members of the group affected by it.  This result does not obtain, however, where a neutral rule has an adverse discriminatory effect.  Its effect on the complainant must be considered and some accommodation required from the employer for the complainant's benefit if the purpose of the Act is to be given effect.  The working rule to which the duty of accommodation applies need not be "reasonably necessary"; it need only be "a condition or rule rationally related to the performance of the job".

 

    Bhinder v. Canadian National Railway Co. is correct in so far as it states that accommodation is not a component of the BFOQ test and that once a BFOQ is proven the employer has no duty to accommodate.  It is incorrect, however, in so far as it applied that principle to a case of adverse effect discrimination.  The end result is that where a rule discriminates directly it can only be justified by a statutory equivalent of a BFOQ, i.e., a defence that considers the rule in its totality.  (All human rights codes in Canada contain some form of BFOQ provision.)  However, where a rule has an adverse discriminatory effect, the appropriate response is to uphold the rule in its general application and consider whether the employer could have accommodated the employee adversely affected without undue hardship.

 

    The rule at issue here bore the form of a neutral condition of general application but had an adverse impact on adherents of minority religions or sects.  The defence of accommodation requires that the rule be rationally connected to the performance of the job and that the respondent employer accommodate the employee up to the point of undue hardship.  The respondent is equally entitled to organize its business by closing down its processing operation on the weekend resulting in Monday's being a particularly busy day.  Its work rule meets the test of being rationally connected to the job of being a dairy processor.  The complainant was lawfully entitled to pursue the practices of his religion and to be free of the compulsion to work on Easter Monday contrary to his religious beliefs.  The onus is upon the respondent employer to show that it made efforts to accommodate the complainant's religious beliefs up to the point of undue hardship.

 

    A comprehensive definition of what constitutes undue hardship is unnecessary.  Some of the factors relevant to such an appraisal, however, might be listed.  They might include financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities.  The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the workforce and facilities can be adapted to the circumstances.  Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations.  This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.

 

    Per La Forest, Sopinka and McLachlin JJ.:  The duty to accommodate must be dealt with in the context of the bona fide occupational qualification exception or defence.

 

    The general intent and spirit of the Act creates a duty to accommodate in religious discrimination cases.  Where a duty to accommodate arises but the statute contains no BFOQ, the employer can discharge the duty only by showing that all reasonable efforts have been made to accommodate individual employees short of creating undue hardship for the employer.  This does not change because of the addition of a statutory defence of BFOQ.  The addition of the defence is relevant to the discharge of the duty but not to its existence.

 

    Where a statutory BFOQ provision is present, its language cannot be avoided.  Once that defence is made out there is no basis for an individual examination of the circumstances of each employee.  The question, however, is how the BFOQ is established having regard to the duty to accommodate.

 

    A successful BFOQ defence requires that there be no reasonable alternative to a rule that does not take into account the individual circumstances of those to whom it applies.  What is reasonable in these terms is a question of fact.  If the employer fails to provide an explanation as to why individual accommodation cannot be accomplished without undue hardship, the duty to accommodate has not been discharged and the BFOQ has not been established.

 

    An employer with a large number of employees of many different religions may be able to discharge the duty inherent in the BFOQ by adopting a policy with respect to the accommodation of the religious beliefs of its employees.  Such a policy may be a reasonable alternative to a practice that entails an ad hoc accommodation of individual employees.  An employer that has not adopted a policy with respect to accommodation and cannot otherwise satisfy the trier of fact that individual accommodation would result in undue hardship will be required to justify his conduct with respect to the individual complainant.  Even then the employer can invoke the BFOQ defence.

 

    Here, the finding of the Board of Inquiry that the employer "made no significant effort to accommodate the request" was fatal to the establishment of a BFOQ.

 

Cases Cited

 

By Wilson J.

 

    Overturned:  Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; considered:  Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536;  Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; Caldwell v. Stuart, [1984] 2 S.C.R. 603; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279.

 

By Sopinka J.

 

    Considered:  Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; Roosma v. Ford Motor Co. (1988), 9 C.H.R.R. D/4743; referred to:  Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971), aff'g 429 F.2d 324 (6th Cir. 1970).

 

Statutes and Regulations Cited

 

Canadian Human Rights Act, S.C. 1976‑77, c. 33, s. 14(a).

 

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, ss. 10, 20.

 

42 U.S.C.A. s. 2000e(j), as amended by Pub. L. 92‑261, s. 2, 86 Stat. 103.

 

Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, s. 7(1), (3).

 

Interpretation Act, R.S.A. 1980, c. I‑7, ss. 10, 12(1).

 

Ontario Human Rights Code, R.S.O. 1980, c. 340, s. 4(1)(g).

 

Ontario Human Rights Code, 1981, S.O. 1981, c. 53.

 

Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (1964), Title VII Equal Employment Opportunity .

 

Authors Cited

 

Canada.  Canadian Human Rights Commission.  The Effects of the Bhinder Decision on the Canadian Human Rights Commission: A Special Report to Parliament.  Ottawa: Canadian Human Rights Commission, 1986.

 

Tarnopolsky, Walter Surma and William F. Pentney.  Discrimination and the Law.   Fifth Cumulative Supplement (September 1989).  By William F. Pentney.  Don Mills, Ont.:  De Boo, 1989.

 

    APPEAL from a judgment of the Alberta Court of Appeal (1988), 62 Alta. L.R. (2d) 207, 56 D.L.R. (4th) 192, [1989] 1 W.W.R. 78, dismissing an appeal from a judgment of MacNaughton J. (1986), 45 Alta. L.R. (2d) 325, 73 A.R. 57, 29 D.L.R. (4th) 154, [1986] 5 W.W.R. 35, Canadian Labour Law Reports 17,001, 8 C.H.R.R. D/3639, allowing an appeal from a ruling of a Board of Inquiry.  Appeal allowed.

 

    Russell D. Albert and J. Leslie Wallace, for the appellant.

 

    Fred Day, for the respondent.

 

    René Duval, for the intervener the Canadian Human Rights Commission.

 

    John I. Laskin and Robyn M. Bell, for the intervener the Canadian Jewish Congress.

 

    Gerald Chipeur, for the intervener Seventh-day Adventist Church.

 

//Wilson//

 

    The judgment of Dickson C.J. and Wilson, L'Heureux-Dubé and Cory JJ. was delivered by**

 

    WILSON J. -- The principal  question  raised in this appeal is whether a particular attendance rule imposed by the respondent employer on an employee is a bona fide occupational qualification ("BFOQ") under the Alberta Individual's Rights Protection Act, R.S.A. 1980, c. I-2 ("the Act").  In the event that this Court answers the question in the negative, we are further called upon by the parties to consider whether the respondent might defend itself from a charge of religious discrimination by proving that it accommodated the employee up to the point of undue hardship.

 

1.  The Facts

 

    The appeal arises out of a complaint launched by Jim Christie ("the complainant") against the respondent alleging that the respondent refused to continue to employ him because of his religion, contrary to s. 7(1) of the Act.  His complaint was upheld by the Board of Inquiry but overturned by the Alberta Court of Queen's Bench.  The Alberta Court of Appeal upheld the Queen's Bench decision.

 

    The complainant was employed by the respondent from August 26, 1980 to April 4, 1983 in a number of positions in the production operations of the respondent's milk processing plant in Wetaskiwin, Alberta.  He became a prospective member of the World Wide Church of God in February, 1983.  The Church recognizes a Saturday Sabbath, a five-day Fall Feast of the Tabernacle, and five other holy days during the year.  Religious adherents are expected not to work on these days, although the Church does not impose sanctions for disobedience.

 

    The complainant requested to work the early shift on Fridays in order that his work schedule not conflict with the onset of his Sabbath.  This request was granted.  He expressed a desire to schedule his vacation time in the future to coincide with the Fall Feast of the Tabernacle but consideration of this request was superceded by subsequent events.

 

    On March 25, 1983, Mr. Christie requested through his supervisor permission to take unpaid leave on Tuesday, March 29 and Monday, April 4, in order to observe two holy days.  The latter day was Easter Monday.  He offered to work alternative days outside his regular schedule in consideration for his absence on the two holy days.  His supervisor responded that he would be allowed to be absent March 29 but for reasons of plant operating needs he would be required at work Monday, April 4.

 

    Mondays are especially busy days at the plant.  Milk arrives seven days a week and milk received on the weekend is prepared Sunday for canning on Monday.  All milk that arrives on the weekend must be canned promptly on Monday to prevent spoilage.  Mondays are also busy shipping days.  In cases of employee absence on Mondays due to sickness or other emergencies the contingency arrangement contemplated under the collective agreement was to adjust work assignments and/or have the supervisor assist in maintaining operations.

 

    The complainant reiterated his request and the reasons for it to his supervisor, his shop steward, and the Branch Manager.  A meeting between these parties, as well as a union representative, took place on March 30 at which time the complainant was advised by the Branch Manager that if he failed to report for work on April 4 his employment would be terminated.  The complainant did not appear for work on April 4.  When he returned on April 5 he found his position occupied by a newly hired employee.  He had been dismissed.

 

    The Board of Inquiry established pursuant to the Act found that the respondent had discriminated against the complainant contrary to s. 7 of the Act and ordered the respondent to pay him partial compensation for Christie's lost wages.  An appeal to the Alberta Court of Queen's Bench was allowed by MacNaughton J. and affirmed by the Alberta Court of Appeal.

 

2.  The Relevant Legislation

 

Individual's Rights Protection Act, R.S.A. 1980 c. I-2:

 

    [Preamble]

 

WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of freedom, justice and peace in the world; and

 

WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in dignity and rights without regard to race, religious beliefs, colour, sex, physical characteristics, age, ancestry or place of origin; and

 

WHEREAS it is fitting that this principle be affirmed by the Legislature of Alberta in an enactment whereby those rights of the individual may be protected:

 

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

 

                                                                        . . .

 

7(1) No employer or person acting on behalf of an employer shall

 

(a) refuse to employ or refuse to continue to employ any person, or

 

(b) discriminate against any person with regard to employment or any term or condition of employment,

 

because of the race, religious beliefs, colour, sex, physical characteristics, marital status, age, ancestry or place of origin of that person or of any other person.

 

                                                                        . . .

 

(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational qualification.

 

The Individual's Rights Protection Amendments Act, 1985, S.A. 1985, c. 33, amended s. 7(3) and replaced "qualification" with "requirement".  The amendment also substituted the term "physical disability" for "physical characteristics".

 

Interpretation Act, R.S.A. 1980, c. I-7:

 

10  An enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and interpretation that best ensures the attainment of its objects.

 

                                                                        . . .

 

12(1)  The preamble of an enactment is a part of the enactment intended to assist in explaining the enactment.

 

3.  The Decisions Below

 

Board of Inquiry (G. M. Johanson, Chairman)

 

    The Board's decision preceded this Court's judgments in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, and Bhinder v. Canadian National Railway Co, [1985] 2 S.C.R. 561.  In the course of its decision the Board considered the public policy underlying the Act (as expressed in the preamble) as well as the interaction of ss. 7(1) and 7(3). It concluded, as did this Court in O'Malley, that intent is not a necessary prerequisite to a finding of discrimination in breach of a human rights statute.

 

    In order to establish a prima facie case of discrimination the Board held that the complainant had to prove:

 

(a) the existence of a bona fide religion with a genuine commitment to it;

 

(b) adequate notice of the employee's religious requirements to the employer; and

 

(c) an effort on the part of the employee to accommodate the employer as far as possible without being required to compromise his beliefs.

 

The first two points were not in dispute.  The complainant's sincerity was not questioned at that time and the employer did not contend that more notice would have affected its decision.

 

    With respect to the complainant's attempt to accommodate his employer, the Board found that his efforts were adequate and "other alternatives could have been explored if his employer had been open to such a discussion".  The Board added, however, that Mr. Christie

 

. . . could and should have been more diligent in consulting  with his minister in the World Wide Church of God to better understand the position of his church based on his particular job and the need of his employer.  Mr. Christie was new to the Church and admitted he had much to learn.  Although Mr. Christie did raise this matter with his minister, the evidence leads us to conclude this was not done in a thorough and complete manner with due regard to the seriousness of his situation.  The evidence leads also to the conclusion his minister may not have provided adequate information and advice.

 

    The Board ruled that these shortcomings in Mr. Christie's conduct could be dealt with at the remedial stage and did not affect the legitimacy of his prima facie case.

 

    The Board then turned to the issue of the employer's accommodation of the complainant's religious beliefs.  It held that the employer's obligation under s. 7(1) of the Act to refrain from discriminatory practices could be limited only to the extent that accommodation would cause undue hardship.  It identified four factors to be considered in assessing undue hardship in relation to reasonable accommodation:  (1) interchangeability of work force and facilities; (2) disruption of a collective agreement; (3) problems of morale of other employees; and (4) costs.  The Board found that the interchangeability factor was the only one of any significance in the present case.  Since Mondays were especially busy the employer did not have the usual flexibility to reassign the work force as it did on other days such as Tuesday, March 29 when Mr. Christie was permitted to be absent.  Although the supervisor, Mr. Shantz, had the ability to fill in, it was unreasonable to expect someone in his position to do so except "in limited and mutually agreeable circumstances".

 

    The collective agreement did not present a serious obstacle to giving Mr. Christie the day off on April 4 and no evidence was submitted by the employer with respect to employee morale or costs.  The Board concluded that:

 

. . . the evidence in this case did not establish an undue hardship or more than de minimus [sic] cost would necessarily have resulted if full and complete consideration had been given to Mr. Christie's request at the time it was raised.  The only real evidence was that Mr. Shantz was required to work on April 4 with the resulting inconvenience to the performance of his supervisory duties.  Because this was the situation and because the Pool did not make any particular attempt to accommodate the request in recognition it was based on the religious beliefs of the employee, we find that the Pool was in violation of Subsection 7(1) of the Individual's Rights Protection Act in that as an employer, they refused to continue to employ Mr. Christie because of his religious beliefs and this action was not based on a bona fide occupational qualification as provided in Subsection 7(3).

 

    The Board did not order reinstatement as a remedy because of "the conflict between Mr. Christie's religious beliefs and the requirements of his production position which in the longer term present a conflict which we are not at all certain can be resolved".  Also, it ordered only partial compensation of Mr. Christie's lost income because "we do not believe the Pool can be held totally responsible".

 

Alberta Court of Queen's Bench (MacNaughton J.) (1986), 45 Alta. L.R. (2d) 325

 

    MacNaughton J. held, at p. 328, that the Board erred in law in finding that the employer's action was not based on a bona fide occupational qualification:

 

    The complainant violated a term or condition of his employment which compelled him to attend regularly, and, in particular on 4th April, 1983, at his place of employment in accordance with the work schedule established by the appellant.  Such term or condition of employment was a bona fide occupational qualification within the meaning of s. 7(3) of the Act . . . .

 

    Having found that attendance in accordance with the employer's work schedule was a bona fide occupational qualification, MacNaughton J. (citing the judgment of McIntyre J. in Bhinder) ruled that the employer had no duty to accommodate once the BFOQ defence was established.  He also held that in any event the employer had reasonably accommodated the religious beliefs of the employee.  Mr. Christie, on the other hand, had failed to take reasonable steps toward accommodating the employer's needs in that he "did not make diligent and complete inquiries of his church representatives to determine whether satisfactory solutions could be found".  In coming to this conclusion, MacNaughton J. relied on evidence from a witness (who was also a member of the same Church as Mr. Christie) that "if the requirement to work on holy days is an ongoing situation, a person has the responsibility to seek, over time, other employment which will allow observance of holy days".  The witness was of the view that Mr. Christie's present occupation would present an ongoing conflict with his religious obligations.

 

Alberta Court of Appeal (Harradence, Belzil, Stevenson JJ.A.), [1986] 5 W.W.R. 35

 

    In a brief judgment Harradence J.A. ruled on behalf of the Court that MacNaughton J. did not err in concluding that the requirement of regular attendance was a BFOQ.  In light of this Court's judgment in Bhinder it was unnecessary to determine whether there was any duty of accommodation on the employer.

 

4.  The Issues

 

    The dispute between the parties in this case revolves around the designation of an employer rule as a BFOQ under s. 7(3) of the Act.  The parties, however, are not agreed as to how to characterize the particular rule at issue.  The appellant describes it as mandatory attendance at work on Mondays.  The respondent contends that it is "regular attendance, in general, and attendance on April 4th, 1983 specifically".

 

    In my view, both of these descriptions are inaccurate.  The employer did not impose mandatory attendance on Mondays without exception.  The record clearly indicates that exceptions were made in cases of illness, unspecified emergencies and, one supposes, annual vacations.  It was not the case that an employee who missed Monday due to illness would automatically be dismissed.  Indeed, the employer had a contingency plan for dealing with precisely those situations.  As for the respondent's submission, I note that there is no evidence that the complainant did not attend regularly, so the question of regular attendance does not arise in this context.  It is true that the complainant asked for and received permission to be absent on Friday, April 1.  To the extent that the respondent implies that its concession with respect to Friday is a relevant consideration in assessing its decision about the following Monday, the respondent's position is disingenuous.  At no time did the respondent assert that its decision with respect to Monday would have been different had the appellant not requested and received other shift changes.  On the contrary, there is every indication that the respondent would have refused to give the complainant Monday off for religious reasons under any circumstances.  Moreover, it is not the case that the complainant refused to work Mondays in general.  Neither could it be said that religious holidays (other than Easter Monday) would fall on Mondays except rarely.  The complainant in the case at bar simply asked for one particular Monday off.  Given this fact, the only way to characterize the respondent's rule would appear to be "mandatory attendance on Mondays except in case of illness or other emergencies, religious obligation not being included as an emergency for this purpose".  Stated in the obverse, the rule prohibited Monday absences due to religious obligation.

 

    So much by way of preliminary comment.  The issues raised in the appeal are as follows:

 

1.  Can the employer's rule be upheld as a bona fide occupational qualification under s. 7(3) of the Act?

 

2.  If question 1 is answered in the negative, was it still open to the respondent to demonstrate that it had accommodated the complainant's religious beliefs up to the point of undue hardship?

 

3.  If question 2 is answered in the affirmative, did the respondent in fact reasonably accommodate the complainant's religious beliefs?

 

    I note in passing that the respondent employer also wishes to put in issue for the first time before this Court the existence of a prima facie case of discrimination.  It alleges, inter alia, that the complainant did not correctly understand the tenets of his faith and that his status as a prospective rather than fully baptized member of the Church somehow compromises his claim to recognition as a genuine adherent of the faith.  The respondent did not impugn the sincerity of the complainant's beliefs at any earlier stage of the proceedings and, in my view, there is no reason to question the Board's finding of fact that "Mr. Christie had a genuine commitment to a bona fide religion".

 

5.  Analysis

 

    This Court has had an opportunity on several occasions to consider the statutory concept of a bona fide occupational qualification ("BFOQ") or bona fide occupational requirement ("BFOR") but a review of the relevant authorities suggests that they may not be completely compatible.

 

    I note at the outset that while McIntyre J. in Bhinder left open the question whether a bona fide occupational qualification has the same meaning as a bona fide occupational requirement, I am of the view that they are equivalent and co-extensive terms.  Most of the jurisprudence treats them as interchangeable and I agree that they are intended to give expression to the same concept.  Accordingly, my conclusions with respect to the meaning of a bona fide occupational qualification are equally applicable to a bona fide occupational requirement.

 

    The first statement by this Court regarding a statutory BFOQ was made in Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202.  At issue was a policy mandating retirement at age sixty for fire fighters.  The employer submitted that the policy was a BFOQ within the meaning of the Ontario Human Rights Code and thus did not constitute discrimination on the basis of age.  Speaking for the Court McIntyre J. outlined the procedure for dealing with a BFOQ provision at p. 208:

 

    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.

 

Turning to the definition of a BFOQ he stated:

 

    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? . . . 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.

 

In other words, past a certain point the physical strength, stamina and alertness of fire fighters diminishes with age, making them less able to deal with the hazards and dangers of fire fighting.  The attendant risk to public safety is obvious.  Thus, the prime justification advanced for the mandatory retirement limitation in Etobicoke was public safety, as opposed to economy or simple efficiency.

 

    McIntyre J. distinguished mandatory retirement for reasons of safety from mandatory retirement for purely economic reasons.  He states at p. 209:

 

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.  [Emphasis added.]

 

Where, however, the cost of "unpredictable human failure" is public safety, the Court agreed that an arbitrary retirement age may be imposed.  McIntyre J. said at pp. 209-10:

 

    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 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 Court concluded that the type of "impressionistic" evidence adduced by the employer in defence of its policy was "inadequate to discharge the burden of proof lying upon the employer."  It had not made out its case for a BFOQ.  It is important to note, however, that the disposition of the case turned on the insufficiency of the evidence and not on the illegitimacy of the claim that the evidence was adduced to support.

 

    The next two significant judgments are Bhinder and O'Malley.

 

    In O'Malley the appellant was a full-time employee of the respondent.  She subsequently became a member of the Seventh-Day Adventist Church which recognizes a Saturday Sabbath.  The tenets of the faith prohibited working from sundown Friday to sundown Saturday.  Her employer refused to permit her to continue as a full-time employee unless she worked on Saturdays.  The relevant legislation, the Ontario Human Rights Code, did not contain a bona fide occupational requirement provision applicable to cases of religious discrimination.  In a unanimous judgment this Court held first that intent is not a necessary element of discrimination under the Code.   The concept of "adverse effect discrimination" developed in the American jurisprudence was accepted and adopted by McIntyre J. on behalf of the Court.  At page 551 he distinguishes between direct discrimination and adverse effect discrimination:

 

    A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment.  Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground.  For example, "No Catholics or no women or no blacks employed here."  There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act.  On the other hand, there is the concept of adverse effect discrimination.  It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force . . . . An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.

 

    Where the rule established by the employer fits into the category of "direct discrimination" and is not saved by any statutory justification, it is simply struck down.  The example cited by McIntyre J. was Etobicoke.  In that case the mandatory retirement rule discriminated directly on the basis of age and the employer's evidence was inadequate to establish a BFOQ.  The rule was struck down.   Where a neutral rule has an adverse discriminatory effect, the same result does not obtain.  At page 552 of O'Malley McIntyre J. contrasts the approach taken to direct discrimination with that taken to adverse effect discrimination:

 

    No question arises in a case involving direct discrimination.  Where a working rule or condition of employment is found to be discriminatory on a prohibited ground and fails to meet any statutory justification test, it is simply struck down:  see the Etobicoke case, supra.  In the case of discrimination on the basis of creed resulting from the effect of a condition or rule rationally related to the performance of the job and not on its face discriminatory a different result follows.  The working rule or condition is not struck down, but its effect on the complainant must be considered, and if the purpose of the Ontario Human Rights Code is to be given effect some accommodation must be required from the employer for the benefit of the complainant.

 

    It is notable that the working rule to which the duty of accommodation applies need not be "reasonably necessary", i.e., it need not be a BFOR.  Rather, it need only be "a condition or rule rationally related to the performance of the job".  In O'Malley the employer adduced no evidence indicating accommodation of the employee's religious needs.  In the result Mrs. O'Malley's appeal was allowed.

 

    In Bhinder the employer had a rule which required the wearing of a hard hat on the job site where the appellant worked as a maintenance electrician.  As a practising Sikh, the appellant's religion forbade him to wear any head covering other than a turban.  The issue was whether the employer's rule was a BFOR under the relevant legislation, the Canadian Human Rights Act.  The majority of the Court (Dickson C.J. and Lamer J. (as he then was) dissenting) held that the Tribunal implicitly (although not expressly) found that the rule was a BFOR within the definition of Etobicoke but subsequently erred in attempting to make an exception with respect to its application to Mr. Bhinder because of its discriminatory impact on him.  The Tribunal found that the rule was "adopted for genuine business reasons with no intent to offend the principles of the Act" and was both "useful" and "reasonable in that it promoted safety by reducing the risk of injury".  In the majority's view, this was tantamount to a finding of a BFOR within the definition in Etobicoke.  In order to appreciate fully the implications of Bhinder it is necessary to review in some detail the ruling of the Tribunal as well as the majority and dissenting judgments of this Court.

 

    The salient facts found by the Tribunal in Bhinder were as follows:

 

    (1)The hard hat rule was useful and reasonable in that it promoted safety by reducing the risk of injury to the employee.

 

    (2)The rule was adopted by the employer for genuine business reasons and with no intent to offend the principles of the Canadian Human Rights Act.

 

    (3)Mr. Bhinder was able to perform his job effectively and efficiently without wearing a hard hat.

 

    (4)The risk of injury to Mr. Bhinder if he did not wear a hard hat was negligible.

 

    (5)The risk of injury to co-workers and the general public if Mr. Bhinder did not wear a hard hat was nil.

 

    (6)The employer's safety policy would not be jeopardized by giving Mr. Bhinder an exemption.

 

    (7)The financial hardship that would be caused the employer in exempting Mr. Bhinder from the hard hat rule was de minimis.

 

    In his dissent Dickson C.J. (Lamer J., as he then was, concurring) summarized at pp. 567-68 the Tribunal's approach to the definition and application of the BFOR provision:

 

The root of the bona fide exception is, according to the Tribunal, "the ability of an employee to perform his or her duties", and the definition of what is a bona fide occupational requirement must be determined on a case by case basis according to the demands of particular jobs.  A policy which discriminates against an individual on religious grounds will not, according to the Tribunal, be a bona fide occupational requirement unless the risks and costs incurred by the employer in accommodating the religious requirements of the individual outweigh the individual's freedom from religious discrimination.  Where the practice of an employee's religious beliefs does not affect his or her ability to perform the duties of the job, nor jeopardize the safety of the public or other employees, nor cause undue hardship to the employer, either in a practical or economic sense, then a policy which restricts that practice is not a bona fide occupational requirement.

 

    The Tribunal, having found as a fact that the failure of Mr. Bhinder to wear a hard hat would not affect his ability to perform the job, nor expose others to risk, nor impose undue hardship on the employer, concluded (according to Dickson C.J.) that the hard hat rule was not a BFOR.  Dickson C.J. agreed with the Tribunal in both its reasons and its result.

 

    Dickson C.J., in effect, focussed upon the bona fide aspect of the BFOR and found that an occupational requirement could not be imposed bona fide unless the employer had exercised its duty to accommodate those on whom the requirement would have an adverse impact.  The purpose of the Canadian Human Rights Act, S.C. 1976-77, c. 33, he stressed, was to prevent discrimination, and discrimination resulting from adverse impact could only be prevented by importing into the BFOR a duty to accommodate.  Quoting from his judgment at p. 571:

 

The words "occupational requirement" mean that the requirement must be manifestly related to the occupation in which the individual complainant is engaged.  Once it is established that a requirement is "occupational", however, it must further be established that it is "bona fide".  A requirement which is prima facie discriminatory against an individual, even if it is in fact "occupational", is not bona fide for the purpose of s. 14(a) if its application to the individual is not reasonably necessary in the sense that undue hardship on the part of the employer would result if an exception or substitution for the requirement were allowed in the case of the individual.  In short, while it is true the words "occupational requirement" refer to a requirement manifest to the occupation as a whole, the qualifying words "bona fide" require an employer to justify the imposition of an occupational requirement on a particular individual when such imposition has discriminatory effects on the individual.

 

    Dickson C.J. saw no conflict between his interpretation of a BFOR in this case and the judgment of this Court in Etobicoke.  He refers to the passage from the Court's judgment in Etobicoke (quoted supra) in which McIntyre J. describes a BFOQ as being objectively related to and "reasonably necessary" for the performance of the job.  He then states at p. 572:

 

As I understand the latter passage, it does not exclude an interpretation of bona fide occupational requirement which requires the discriminatory impact of an occupational requirement on an individual to be taken into account.  The gist of the passage is that a requirement be "reasonably necessary" for the efficient, economical and safe performance of the job.  The passage leaves open the question of whether the assessment of reasonable necessity is to be considered in respect of the necessity of the general requirement, or the necessity of applying the general requirement to an individual upon whom it will have a discriminatory effect.  In the present case, the Tribunal held that application of an occupational requirement to an individual who suffers discrimination as a result of such application must be "reasonably necessary", in the sense that the only alternative is undue hardship on the part of the employer, before it qualifies as a bona fide occupational requirement.  This is, in my opinion, consistent with the test in Etobicoke, supra.  [Emphasis added.]

 

    The majority of this Court took the view that the words "bona fide occupational requirement" precluded the type of individual application advocated by the Tribunal and the justices in dissent.  McIntyre J. draws a distinction  between a requirement related to the occupation and one related to the individual at pp. 588-89:

 

Here, however, we are faced with a finding -- at least so far as one employee goes -- that a working condition is not a bona fide occupational requirement.  We must consider then whether such an individual application of a bona fide occupational requirement is permissible or possible.  The words of the Statute speak of an "occupational requirement".  This must refer to a requirement for the occupation, not a requirement limited to an individual.  It must apply to all members of the employee group concerned because it is a requirement of general application concerning the safety of employees.  The employee must meet the requirement in order to hold the employment.  It is, by its nature, not susceptible to individual application . . . . A condition of employment does not lose its character as a bona fide occupational requirement because it may be discriminatory.  Rather, if a working condition is established as a bona fide occupational requirement, the consequential discrimination, if any, is permitted -- or, probably more accurately -- is not considered under s. 14(a) as being discriminatory.  [Emphasis added.]

 

    In light of this distinction, McIntyre J. found it impossible to incorporate a duty to accommodate individual employees into the BFOR without doing violence to the language of the BFOR provision.  He states at p. 589:

 

To conclude then that an otherwise established bona fide occupational requirement could have no application to one employee, because of the special characteristics of that employee, is not to give s. 14(a) a narrow interpretation; it is simply to ignore its plain language.  To apply a bona fide occupational requirement to each individual with varying results, depending on individual differences, is to rob it of its character as an occupational requirement and to render meaningless the clear provisions of s. 14(a).  [Emphasis added.]

 

    In my concurring judgment I agreed with McIntyre J. that an occupational requirement is by definition job related, not employee related.

 

    Coming back to the application of the BFOR test in Bhinder, the majority inferred from the findings of fact made by the Tribunal that the hard hat requirement was a BFOR according to the test propounded in Etobicoke.  McIntyre J. states at pp. 587-88:

 

    The appellant has established a prima facie case of discrimination.  The onus therefore has passed to the respondent to show that the hard hat rule is a bona fide occupational requirement.  From a reading of the reasons for decision of the Tribunal it appears that the test was met.  Specifically, the Tribunal found that the hard hat rule was not a bona fide occupational requirement as far as it related to Bhinder and, in consequence, to other Sikhs.  In this, they were accepting the appellant's individual case approach.  It is, however, clear from the reasons and the references made by the Tribunal to the evidence that it was of the view that, as far as the rule applied to non-Sikhs, it was a bona fide occupational requirement.  It was agreed that CN adopted the rule for genuine business reasons with no intent to offend the principles of the Act.  The Tribunal found that the rule was useful, that it was reasonable in that it promoted safety by reducing the risk of injury and, specifically, that the risk faced by Bhinder in wearing a turban rather than a hard hat was increased, though by a very small amount.  The only conclusion that can be drawn from the reasons for decision is that, but for its special application to Bhinder, the hard hat rule was found to be a bona fide occupational requirement.  Indeed, it would be difficult on the facts to reach any other conclusion.  [Emphasis added.]

 

    It should be acknowledged that the majority judgment in Bhinder has not gone uncriticized.  In The Effects of the Bhinder Decision on the Canadian Human Rights Commission: A Special Report to Parliament, February 1986, the Commission expressed concern about Bhinder's anticipated impact on its ability to fulfil its mandate.  It stated at p. 4:

 

. . . the effect of the Bhinder decision is to . . . put the Commission's ability to achieve its legislatively-defined objective in doubt.  This can mean, for example, that workplaces may not have to be modified to enable disabled individuals to earn a livelihood; women who become pregnant and who require some temporary modification of their duties may be forced from their jobs; persons who for religious reasons cannot work regular business hours may have difficulty in finding employment.

 

    These are not merely hypothetical problems.  Currently, the Commission is investigating 528 complaints alleging discrimination in employment.  Potentially, 33% of the complaints which concern religion or disability and 5% of the complaints dealing with sex discrimination might be affected by the Bhinder decision.

 

    It seems to me in retrospect that the majority of this Court may indeed have erred in concluding that the hard hat rule was a BFOR.  I say that not because I disagree with the test set out in Etobicoke nor because I accept the proposition advanced by those in dissent that accommodation is a necessary component of a BFOR, but for two other reasons.

 

    First, the rule was not, to use the terminology of Etobicoke, "reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public".  The Tribunal found as a fact that the failure of Mr. Bhinder to wear a hard hat would not affect his ability to work as a maintenance electrician or pose any threat to the safety of his co-workers or to the public at large.  The Tribunal did find that not wearing a hard hat would increase the risk to Mr. Bhinder himself, but only marginally.  In light of the findings of fact by the Tribunal, I think it is difficult to support the conclusion of the majority of the Court that the hard hat rule was reasonably necessary for the safety of Mr. Bhinder, his fellow employees and the general public.

 

    My second reason for questioning the correctness of Bhinder concerns the assumption that underlies both the majority and minority judgments, namely that a BFOR defence applies to cases of adverse effect discrimination.  Upon reflection, I think we may have erred in failing to critically examine this assumption.  As McIntyre J. notes in O'Malley, the BFOQ test in Etobicoke was formulated in the context of a case of direct discrimination on the basis of age.  The essence of direct discrimination in employment is the making of a rule that generalizes about a person's ability to perform a job based on membership in a group sharing a common personal attribute such as age, sex, religion, etc.  The ideal of human rights legislation is that each person be accorded equal treatment as an individual taking into account those attributes.   Thus, justification of a rule manifesting a group stereotype depends on the validity of the generalization and/or the impossibility of making individualized assessments.

 

    In Etobicoke this Court found that the employer had not adduced sufficient evidence to support its generalization with respect to the abilities of fire fighters over the age of sixty.  In the recent case of Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297, this Court revisited the rule of mandatory retirement considered by it in Etobicoke.  In Saskatoon Fire Fighters the Tribunal had persuasive evidence before it as to the relationship between advancing age and declining ability.  It was also satisfied that there was no reliable method of individualized testing, the availability of which would have obviated the need for a uniform age-based rule.  In sum, the Court accepted that the evidence adduced by the employer supported both the generalization about the effect of age on ability and the inadequacy of individualized assessments.  Thus the Court affirmed the Tribunal's decision that under the circumstances a BFOQ had been established.

 

    Another example from this Court's jurisprudence is Caldwell v. Stuart, [1984] 2 S.C.R. 603, in which adherence to the tenets of the Roman Catholic faith was held to constitute a BFOQ for a Roman Catholic teacher in a Roman Catholic school.  In effect, this Court validated the generalization that the creation of an appropriate spiritual atmosphere in a Roman Catholic school required of all Catholic teachers that they demonstrate religious conformance themselves.

 

    Where a rule discriminates on its face on a prohibited ground of discrimination, it follows that it must rely for its justification on the validity of its application to all members of the group affected by it.  There can be no duty to accommodate individual members of that group within the justificatory test because, as McIntyre J. pointed out, that would undermine the rationale of the defence.  Either it is valid to make a rule that generalizes about members of a group or it is not.  By their very nature rules that discriminate directly impose a burden on all persons who fall within them.  If they can be justified at all, they must be justified in their general application.  That is why the rule must be struck down if the employer fails to establish the BFOQ.  This is distinguishable from a rule that is neutral on its face but has an adverse effect on certain members of the group to whom it applies.  In such a case the group of people who are adversely affected by it is always smaller than the group to which the rule applies.  On the facts of many cases the "group" adversely affected may comprise a minority of one, namely the complainant.  In these situations the rule is upheld so that it will apply to everyone except persons on whom it has a discriminatory impact, provided the employer can accommodate them without undue hardship.  In O'Malley McIntyre J. clarifies the basis for the different consequences that follow a finding of direct discrimination as opposed to a finding of adverse effect discrimination.  He states at p. 555:

 

The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship:  in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer.  Cases such as this raise a very different issue from those which rest on direct discrimination.  Where direct discrimination is shown the employer must justify the rule, if such a step is possible under the enactment in question, or it is struck down.  Where there is adverse effect discrimination on account of creed the offending order or rule will not necessarily be struck down.  It will survive in most cases because its discriminatory effect is limited to one person or to one group, and it is the effect upon them rather than upon the general work force which must be considered.  In such case there is no question of justification raised because the rule, if rationally connected to the employment, needs no justification; what is required is some measure of accommodation.  The employer must take reasonable steps towards that end which may or may not result in full accommodation.  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.  [Emphasis added.]

 

    The salient feature of the reasoning in this passage is that the appropriate remedy depends upon the type of discrimination involved.  Professor W. Pentney, in Tarnopolsky and Pentney, Discrimination and the Law, Fifth Cumulative Supplement (September 1989), agrees with the logic of this approach.  After reviewing the implications of this Court's reasons in O'Malley and Bhinder he points out at p. 28 that different considerations are relevant to the BFOQ and duty to accommodate concepts.  For example, the economic considerations that are factored into the determination of whether accommodation imposes undue hardship will rarely be germane to a BFOQ defence.  Similarly, the good faith of the employer is a central concern where the rule singles out a particular group for adverse treatment.  There is less reason to be suspicious of the employer's motives in the case of a rule which is neutral on its face and generally applicable to all employees.  Professor Pentney concludes that direct and adverse effect discrimination ought to be distinguished for purposes of determining the appropriate response to a prima facie case of discrimination.

 

    The rationale for the distinction can, I believe, be readily perceived from the majority's conclusion in Bhinder that once a BFOR is established the employer has no duty to accommodate.  This is because the essence of a BFOR is that it be determined by reference to the occupational requirement and not the individual characteristic.  There is therefore no room for accommodation:  the rule must stand or fall in its entirety.  Accordingly, had the majority in Bhinder concluded that the hard hat rule was not a BFOR under the Etobicoke test, as it probably should have done, the logic of the BFOR approach would have required the rule to be struck down even as it applied to those workers on whom it had no discriminatory impact.  Such anomalous results would seem to be both unnecessary and counter-productive.

 

    For these reasons, I am of the view that Bhinder is correct in so far as it states that accommodation is not a component of the BFOR test and that once a BFOR is proven the employer has no duty to accommodate.  It is incorrect, however, in so far as it applied that principle to a case of adverse effect discrimination.   The end result is that where a rule discriminates directly it can only be justified by a statutory equivalent of a BFOQ, i.e., a defence that considers the rule in its totality.  (I note in passing that all human rights codes in Canada contain some form of BFOQ provision.)  However, where a rule has an adverse discriminatory effect, the appropriate response is to uphold the rule in its general application and consider whether the employer could have accommodated the employee adversely affected without undue hardship.

 

    An analysis of this Court's jurisprudence in this area would not be complete without reference to Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, in which the Court considered the Quebec equivalent of a BFOQ provision.  At issue in the case was a municipality's anti-nepotism hiring policy which disqualified spouses and relatives of full-time municipal employees and town councillors from employment with the town.  Section 10 of the Quebec Charter of Human Rights and Freedoms prohibited discrimination on the basis of "civil status".  Section 20 deemed non-discriminatory "[a] distinction, exclusion or preference based on the aptitudes or qualifications required in good faith for an employment".  Once again, the Court was dealing with a case of direct discrimination.  Writing for the majority, at pp. 311-12, Beetz J. articulated the following two criteria for establishing the existence of an "aptitude or qualification required for employment":

 

(1)Is the aptitude or qualification rationally connected to the employment concerned?  This allows us to determine whether the employer's purpose in establishing the requirement is appropriate in an objective sense to the job in question . . . .

 

    (2)Is the rule properly designed to ensure that the aptitude or qualification is met without placing an undue burden on those to whom the rule applies?  This allows us to inquire as to the reasonableness of the means the employer chooses to test for the presence of the requirement for the employment in question.

 

    The first question refers to an ability to perform the duties required by the occupation in general.  It speaks to the objective of employing people qualified to do what the job entails.  The second question focusses on the particular rule established by the employer to ensure that the employment qualifications are met.  It is addressed to the means utilized by the employer to achieve its objective of employing qualified people.

 

    Although the language used in Brossard differs somewhat from the language used in the earlier BFOQ cases, I do not believe it was intended to depart from the Court's earlier jurisprudence on the application of a BFOQ test to a case of direct discrimination.  Indeed, Beetz J. uses Etobicoke as an example of the application of his two part test.  Thus, while the use of the term "rationally connected" perhaps owes more to O'Malley than to the Etobicoke "reasonably necessary" standard, I do not think it is meant to alter fundamentally the course charted by this Court in Etobicoke.

 

    The second branch of the Brossard test addresses the availability of alternatives to the employer's rule.  In my opinion, this is not designed to be a discrete test for determining the existence of a BFOQ but rather a factor that must be taken into account in determining whether the rule is "reasonably necessary" under the first branch.  The fact that this Court had not explicitly drawn attention to it before may help explain its being singled out in Brossard.  I believe that the proposition it stands for is uncontroversial.  If a reasonable  alternative exists to burdening members of a group with a given rule, that rule will not be bona fide.  In Brossard Beetz J. held that the rule was cast too broadly in that it applied to persons and situations where no reasonable apprehension of conflict of interest could possibly arise.  In my concurring judgment, I agreed that the rule was not a BFOQ because of the availability of reasonable alternatives.  At page 344 I stated:

 

    It seems to me that, having regard to the nature of the right which is violated by an anti-nepotism policy, i.e., the right under s. 10 not to be discriminated against, the adoption of a total ban is not "reasonably necessary" in order to avoid a threat to the integrity of the town's administration.  The town can avoid the threat by the less drastic means I have suggested.

 

    This approach was endorsed and applied by this Court in the recent case of Saskatoon Fire Fighters, supra.  Unlike Etobicoke, the parties addressed the availability of individualized testing of fire fighters to determine employee fitness as an alternative to a rule which on its face discriminated on the basis of age.  Writing for the Court, Sopinka J. stated at pp. 1313-14:

 

While it is not an absolute requirement that employees be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing.  If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it.  [Emphasis added.]

 

6.  Application to the Case at Bar

 

    The rule at issue in the case at bar pertains to mandatory Monday attendance subject to exceptions that do not include religious obligation.  It bears the form of a neutral condition of general application and as a practical matter would be unlikely to impose any hardship on employees who adhere to the majority religious faiths.  The adverse impact of the rule would be confined to adherents of minority religions or sects such as, in this case, a follower of the World Wide Church of God.

 

    In light of my conclusions regarding the respective roles of a BFOQ and the duty to accommodate, we need only be concerned in this case with the criteria for establishing the defence of accommodation.  Was the rule rationally connected to the performance of the job and, if so, did the respondent employer accommodate the employee up to the point of undue hardship?

 

    McIntyre J.'s judgment in O'Malley provides some guidance in identifying a rational connection between a given rule and the employment.  At page 551 he speaks of an "employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply . . ."  As in the case at bar, the rule in O'Malley pertained to attendance on certain days, specifically two out of three Saturdays.  The Court in O'Malley concluded that the employer's rule satisfied the first branch of the test.  McIntyre J. states at pp. 555-56:

 

    To relate the principle of accommodation to the facts at bar, we must begin with the proposition that the employer is lawfully entitled to carry on business and to stay open for business on Saturdays.  It is accordingly entitled to engage employees on the condition that they work on Saturdays.

 

    I think it must follow from this that the respondent in the case at bar is equally entitled to organize its business by closing down its processing operation on the weekend resulting in Mondays being a particularly busy day.  The respondent's work rule accordingly meets the test of being rationally connected to the job of being a dairy processor.

 

    Turning to the question of reasonable accommodation, I adopt the observations made by McIntyre J. at p. 556 in O'Malley with respect to Mrs. O'Malley and find here too that the complainant was lawfully entitled to pursue the practices of his religion and to be free of the compulsion to work on Monday, April 4, 1983 contrary to his religious beliefs.  The onus is upon the respondent employer to show that it made efforts to accommodate the religious beliefs of the complainant up to the point of undue hardship.

 

    I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal.  I begin by adopting those identified by the Board of Inquiry in the case at bar -- financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities.  The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances.  Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations.  This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.

 

    In the case at bar the Board of Inquiry found as a fact that concerns of cost, disruption of a collective agreement, employee morale and interchangeability of work force did not pose serious obstacles to accommodating the complainant's religious needs by permitting him to be absent on Monday, April 4, 1983.  Indeed, it would be very difficult to conclude otherwise in light of the existence of a contingency plan for dealing with sporadic Monday absences.  If the employer could cope with an employee's being sick or away on vacation on Mondays, it could surely accommodate a similarly isolated absence of an employee due to religious obligation.  I emphasize once again that there is nothing in the evidence to suggest that Monday absences of the complainant would have become routine or that the general attendance record of the complainant was a subject of concern.  The ability of the respondent to accommodate the complainant on this occasion was, on the evidence, obvious and, to my mind, incontrovertible.  I therefore find that the respondent has failed to discharge its burden of proving that it accommodated the complainant up to the point of undue hardship.

 

7.  Disposition

 

    I would allow the appeal and restore the award of the Board of Inquiry.  The appellant shall have its costs both here and in the court below.

 

//Sopinka//

 

    The reasons of La Forest, Sopinka and McLachlin JJ. were delivered by

 

    SOPINKA J. -- I have had the advantage of reading the reasons of Wilson J. herein.  Although I agree with the disposition proposed by her, I arrive at that conclusion by a different route.  In particular, I am of the opinion that the duty to accommodate must be dealt with in the context of the bona fide occupational qualification ("BFOQ") exception or defence.

 

    The facts are stated in the reasons of my colleague and it is not necessary to repeat them.  I would simply observe that the alleged discriminatory conduct in this case was the ad hoc decision of the respondent not to allow the appellant to be absent for work on April 4, 1983.  Although no doubt there was a general understanding that employees work during "working days", this was not inflexible.  Indeed it was relaxed to permit the appellant to be absent on March 29.  I will elaborate on the significance of these facts later in these reasons.

 

    The "limitation, specification or preference" which required justification under s. 7(3) of the Individual's Rights Protection Act, R.S.A. 1980, c. I-2, was the refusal to allow the appellant to be absent on April 4.

 

The Duty to Accommodate and Bona Fide Occupational Requirement

 

    The concept of duty to accommodate originated in American cases concerning Title VII Equal Employment Opportunity of the Civil Rights Act of  1964, Pub. L. 88-352.  In Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971), an evenly split Supreme Court of the United States affirmed a decision of the Court of Appeals, 429 F.2d 324 (6th Cir. 1970), negating the existence of the duty.  In 1972, the Act was amended to specifically provide for a duty to accommodate:  see 42 U.S.C.A. s. 2000e(j), as amended by Pub. L. 92-261, s. 2, 86 Stat. 103.

 

    In Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, a work rule was attacked that was neutral on its face but discriminatory in its effect on Mrs. O'Malley.  It was conceded that the employer had no intention to discriminate.  This Court accepted the proposition that intention to discriminate was not a requirement for a finding of discrimination under s. 4(1)(g) of the Ontario Human Rights Code, R.S.O. 1980, c. 340.  Without more, this would have made the liability of employers absolute once it was found that a rule neutral on its face had a discriminatory effect.  Based on the United States experience, it was submitted by the appellant (O'Malley) that the employer could still escape liability if the employer established that it was not in breach of its duty to accommodate.  From this perspective, the duty is more in the nature of an exception from liability than an additional obligation.

 

    The Court accepted this submission, although there was no statutory provision in the Ontario Code which explicitly recognized a duty to accommodate.  The requirement was, however, found to exist in the general provisions and intent of the Code.  McIntyre J., speaking for the Court, stated at p. 553:

 

The reasonable standard, referred to by Professor Ratushny, and the duty to accommodate, referred to in the American cases, provide that where it is shown that a working rule has caused discrimination it is incumbent upon the employer to make a reasonable effort to accommodate the religious needs of the employee, short of undue hardship to the employer in the conduct of his business.

 

Earlier he had stated at p. 552:

 

The working rule or condition is not struck down, but its effect on the complainant must be considered, and if the purpose of the Ontario Human Rights Code is to be given effect some accommodation must be required from the employer for the benefit of the complainant.

 

    Since the Ontario Code contained no BFOQ defence which applied to discrimination on the basis of religion, the Court did not need to concern itself with the effect of a BFOQ on the duty to accommodate.

 

    In Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, the only significant difference from O'Malley was the existence of a BFOQ clause.  McIntyre J. pointed this out, stating at p. 586:

 

The facts in this case and in that of O'Malley are identical in principle and the only significant difference between the two governing statutes as far as this case is concerned is the presence of s. 14(a) in the Canadian Human Rights Act creating the bona fide occupational requirement defence.  The fundamental point then on which this case must turn is the question of whether the hard hat rule is a bona fide occupational requirement and, if so, what effect must be given to s. 14(a) of the Act?

 

    He went on to find that once a BFOQ was established, s. 14(a) of the Canadian Human Rights Act, S.C. 1976-77, c. 33, left no room for the examination of the effects on each individual.  He stated at p. 589:

 

To conclude then that an otherwise established bona fide occupational requirement could have no application to one employee, because of the special characteristics of that employee, is not to give s. 14(a) a narrow interpretation; it is simply to ignore its plain language.  To apply a bona fide occupational requirement to each individual with varying results, depending on individual differences, is to rob it of its character as an occupational requirement and to render meaningless the clear provisions of s. 14(a).  [Emphasis added.]

 

    He concluded, therefore, that since the duty to accommodate required an examination of the effects of the rule on individual employees, a BFOQ defence left no room for a duty to accommodate.  He continued at p. 590:

 

The duty to accommodate is a duty imposed on the employer to take reasonable steps short of undue hardship to accommodate the religious practices of the employee when the employee has suffered or will suffer discrimination from a working rule or condition.  The bona fide occupational requirement defence set out in s. 14(a) leaves no room for any such duty for, by its clear terms where the bona fide occupational requirement exists, no discriminatory practice has occurred.  As framed in the Canadian Human Rights Act, the bona fide occupational requirement defence when established forecloses any duty to accommodate.  [Emphasis added.]

 

    My colleague seeks to avoid the result in Bhinder by limiting its reasoning to cases of direct discrimination, but excluding from its purview cases of adverse effect discrimination.  Bhinder was, of course, a classic example of adverse effect discrimination.  On this thesis the statutory defence either does not apply at all to adverse effect discrimination or applies only to save the rule but does not exculpate the respondent.  Apart from constituting a radical departure from Bhinder, this conclusion requires a rewriting of the statute.  First, the statute makes no distinction between direct and indirect discrimination.  Second, the BFOQ applies equally to all forms of discrimination.  Section 7 of the Act provides, in relevant part:

 

7(1)                      No employer or person acting on behalf of an employer shall

 

(a)                        refuse to employ or refuse to continue to employ any person, or

 

(b)                        discriminate against any person with regard to employment or any term or condition of employment,

 

because of the race, religious beliefs, colour, sex, physical characteristics, marital status, age, ancestry or place of origin of that person or of any other person.

 

                                                                        . . .

 

(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational qualification.

 

    If an employer brings herself within s. 7(3), then subs. (1), which creates liability, simply does not apply.  There is no discrimination in respect of which the duty to accommodate can operate.

 

    The approach which my colleague adopts is referred to in Tarnopolsky and Pentney, Discrimination and the Law, Fifth Cumulative Supplement (September 1989), which is cited in support of her reasons.  The learned authors refer to the distinction between direct and adverse effect discrimination and comment, at p. 29, that:

 

The b.f.o.q. defence after Etobicoke is well suited to situations involving "direct discrimination".  In adverse effect analysis, however, the defences of business rationality and duty to accommodate short of undue hardship, as explained earlier, incorporate the flexibility and balancing of interests which are necessary in order to make the concept effective.

 

The learned authors conclude that this approach should be rejected.  They state at p. 29:

 

    Although it is submitted that this argument is logically defensible, it will not be elaborated upon because it marks such a radical departure from the Bhinder decision.  Instead, an alternative approach which involves the incorporation of the duty to accommodate into the b.f.o.q. defence will be examined.  There are two approaches to the b.f.o.q. defence which have been recognized in Canadian law thus far.  The first approach requires an employer to make an individualized assessment of an employee in order to justify a b.f.o.q.  The second approach allows an employer to justify a class-based b.f.o.q. where the class is defined by reference to one of the prohibited grounds of discrimination, in situations in which it is impractical or impossible to assess employees individually.  Although existing law is somewhat ambiguous on the point, there is support for the proposition that an individualized b.f.o.q. is generally to be preferred and that a class-based b.f.o.q. will be recognized only in cases where public safety and the "risk of unpredictable human failure" are involved.  [Emphasis added.]

 

    While Bhinder precludes an individual application of the BFOQ, subsequent jurisprudence in this Court makes it clear that an employer may fail to establish a BFOQ defence if he is unable to provide an acceptable explanation as to why it was not possible to deal with employees on an individual basis.  In Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, at p. 312, Beetz J. specified the following as the second of two criteria for the establishment of a BFOQ:

 

(2)Is the rule properly designed to ensure that the aptitude or qualification is met without placing an undue burden on those to whom the rule applies?  This allows us to inquire as to the reasonableness of the means the employer chooses to test for the presence of the requirement for the employment in question.

 

And in Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297, the Court stated at pp. 1313-14:

 

While it is not an absolute requirement that employees be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing.  If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it.  [Emphasis added.]

 

    As my colleague puts it in her reasons at p. 000:  "If a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be bona fide." 

 

    How then is Bhinder to be applied in light of the refinements found in Brossard and Saskatoon Fire Fighters?  By virtue of O'Malley, there is a duty to accommodate in religious discrimination cases by reason of the general intent and spirit of the Code.  In a case such as O'Malley, in which a duty to accommodate arises but the statute contains no BFOQ, the employer can discharge the duty only by showing that all reasonable efforts have been made to accommodate individual employees short of creating undue hardship for the employer.  This does not change because of the addition of a statutory defence of BFOQ.  The addition of the defence is relevant to the discharge of the duty but not to its existence.

 

    Where a statutory BFOQ provision is present, its language cannot be avoided.  With respect, McIntyre J. was right in Bhinder in saying that once that defence is made out there is no basis for an individual examination of the circumstances of each employee.  The question, however, is how the BFOQ is established having regard to the duty to accommodate.  I have referred above to the principle that in general a prerequisite to a successful BFOQ defence is a showing that there was no reasonable alternative to a rule that does not take into account the individual circumstances of those to whom it applies.  An employer who wishes to avail himself of a general rule having a discriminatory effect on the basis of religion must show that the impact on the religious practices of those subject to the rule was considered, and that there was no reasonable alternative short of causing undue hardship to the employer.  What is reasonable in these terms is a question of fact.  If the employer fails to provide an explanation as to why individual accommodation cannot be accomplished without undue hardship, this will ordinarily result in a finding that the duty to accommodate has not been discharged and that the BFOQ has not been established.  In Roosma v. Ford Motor Co. (1988), 9 C.H.R.R. D/4743, a Board of Inquiry chaired by Professor P. P. Mercer (now Dean of the University of Western Ontario Law School) dealt with the Ontario Human Rights Code, 1981, S.O. 1981, c. 53 which deals separately with direct and adverse effect discrimination and makes the BFOQ applicable to both.  The relationship between the BFOQ and the duty to accommodate in the case of adverse effect discrimination was aptly expressed as follows at p. D/4747:

 

A neutral "requirement, qualification or consideration" which gives rise to constructive discrimination is only allowed to operate as an exception where it is reasonable and bona fide in the circumstances.  And it is only reasonable in the circumstances, consistent with O'Malley, if accommodation cannot be accomplished without undue hardship.

 

    An employer with a large number of employees of many different religions may be able to discharge the duty inherent in the BFOQ by adopting a policy with respect to the accommodation of the religious beliefs of its employees.  Such a policy may be a reasonable alternative to a practice that entails an ad hoc accommodation of individual employees.  This is one of the advantages of dealing with the duty to accommodate in the context of the BFOQ defence rather than at large.  An employer who has not adopted a policy with respect to accommodation and cannot otherwise satisfy the trier of fact that individual accommodation would result in undue hardship will be required to justify his conduct with respect to the individual complainant.  Even then the employer can invoke the BFOQ defence, and if the decision in the individual case satisfies the above requirements, the defence is made out.

 

Application to this Case

 

    The facts of this case are particularly apt to illustrate the application of the above principles.  We have a vague general rule that requires employees to work all working days.  There is no evidence of any consideration being given to the religious practices of employees in the adoption of that general rule.  No doubt this is due to the fact that the general practice was not formulated in any structured way.  It simply developed, and until the present complaint no consideration had been given to religious practices.  The respondent cannot, therefore, justify its treatment of the appellant on the basis of the general rule.  It has not been shown to be a BFOQ.

 

    Nonetheless, if the individual decision with respect to the appellant satisfies the criteria for a BFOQ, s. 7(3) would apply and discrimination would thereby be negated.  As indicated above, the employer must establish that it could not accommodate the appellant without undue hardship.  The Board of Inquiry found as a fact that the employer "made no significant effort to accommodate the request."  I see no reason to disturb that finding.  On the basis of the principles stated above, that finding is fatal to the establishment of a BFOQ.  Accordingly, I would allow the appeal and restore the decision of the Board of Inquiry.

 

    Appeal allowed.

 

    Solicitor for the appellant:  Alberta Human Rights Commission, Edmonton.

 

    Solicitors for the respondent:  McLennan, Ross, Edmonton.

 

    Solicitor for the intervener the Canadian Human Rights Commission:  Canadian Human Rights Commission, Ottawa.

 

    Solicitors for the intervener the Canadian Jewish Congress:  Davies, Ward & Beck, Toronto.

 

    Solicitors for the intervener Seventh-day Adventist Church:  Milner & Steer, Edmonton.

 



     *    Chief Justice at the time of hearing.

     ** See Erratum, [1991] 2 S.C.R. iv

 

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